Snowed In…

As I sit at home working remotely (AGAIN!) due to the latest snowstorm, I am struck by the thought of how paralyzing this winter has been.  Similar to Hurricane Sandy in 2012, this snowy and icy winter is likely to have a material affect on many public companies.    

Companies should consider whether additional disclosure should be added to their earnings releases or periodic filings regarding the potential effects of this winter season.  In particular, companies should consider whether to include disclosure related to this winter season in the following areas:

  • Forward-looking statements –  references to the winter season as one of the risks and uncertainties which could cause actual results to differ materially from those projected;
  • Risk Factors–  risk factor related to the potential impact of this winter season on their results of operations and financial position;
  • MD&A –   disclosure about the effects of this winter season if the report is filed after the winter season affected the company and/or as a known trend, event or uncertainty;
  • Guidance – companies should consider whether guidance given in the past or currently being issued may be affected by the winter season.  Companies should consider whether it is necessary to point out that such guidance did or does not take into account the effects of this winer season or estimates the effects of this winter season.

 Hopefully this winter madness will end soon and we can all get back to our routines as usual.  Stay safe and warm.

Hurricane Sandy and SEC Filings

The SEC has recognized that it may be logistically difficult for some companies to file various SEC reports and other documents within the prescribed deadlines due to the effects of Hurricane Sandy.  The SEC has posted Hurricane Sandy Information stating that some filers may be unable to submit their filings during the weather emergency and that they should do so when they are able.  The SEC will handle requests for filing date adjustments on a case by case basis.

A few SEC filings made this week reflect the effect of Hurricane Sandy ranging from postponing or cancelling quarterly earnings calls to extending the deadline of a tender offer.

In addition, in response to Hurricane Sandy, some companies qualify their guidance in earnings press releases by excluding losses due to the impact of the hurricane if a significant portion of the company’s revenues is derived from the areas affected by Hurricane Sandy.   Some forward-looking statements in earnings press releases reference the impact of Hurricane Sandy as one of the risks and uncertainties which could cause actual results to differ materially from those projected. 

While we are in the midst of the 10-Q season, companies affected by Hurricane Sandy should also evaluate whether they need to include in Form 10-Q a risk factor related to the potential impact of the hurricane on their results of operations and financial position.