Posts Tagged ‘Materiality’

What’s material? It depends …

November 3, 2015

Materiality is one of those fuzzy ideas. Is it a piece of information that makes your stock price move (or would if disclosed)? A change that impacts sales or profit by 10% … or 5 … or 1? One of those events requiring an 8-K filing? Is anything investors want to know material?

Early in my career in investor relations, I learned that accountants can be surprisingly philosophical – arguing vehemently when gathered around a table for late-night discussion of a draft. The same is true of lawyers. And I suppose IROs can disagree on such issues, too.

The Wall Street Journal offered up a couple of explorations this week:

In “Definition of Materiality Depends Who You Ask” on Nov. 3, the quicker read, a WSJ blogger quotes five different definitions of materiality – such as they are – and notes that they are in flux.

In “Firms, Regulators Try to Sort Out What’s Worth Disclosing to Investors” on Nov. 2, the paper focuses on potential shifts in regulatory views – and pushback from companies against overlegislation.

This debate is perennial, and probably unresolvable. But a refreshing aspect is the new interest in whether companies are disclosing too much detail that has nothing to do with investors making decisions – and by its sheer volume may obscure what the real issues are.

Honeywell International Inc., the paper notes, is pursuing on a “disclosure simplification” project to enhance the quality of reporting. In October, Honeywell and its CPAs met with the SEC staff – and the agency filed a short Honeywell slide deck outlining key themes:

  • Eliminate duplicative and immaterial disclosures
  • Customize disclosures to Honeywell
  • Streamline footnotes to address information overload
  • Assess the relevance of recurring disclosures
  • Challenge boilerplate language typically included in company filings
  • Use of cross references

Hmmm … novel ideas. Reducing repetition, making footnotes digestible, taking a red pen to boilerplate and questioning verbiage that’s been in the 10-K so long no one can remember why. This will be interesting.

And what do you think “material” means?

© 2015 Johnson Strategic Communications Inc.

Reg FD: Does $50,000 get your attention?

September 7, 2013

Court gavelIn the old days, companies sometimes tried to soften the shock of bad news by getting on the phone with key analysts to tweak their assumptions, whether on this quarter’s earnings or another issue. A Regulation FD case against an IRO, resolved Friday by the Securities and Exchange Commission, sends a clear message: The old days are over.

Here’s my non-lawyer version of what Reg FD says to IROs: When things are changing in ways that may be material for shareholders, don’t think about “signaling” or “telegraphing” the market by talking to a few analysts and investors. Instead, broadly disclose the changes through a news release, 8-K filing, or conference call open to all investors. Selective disclosure is out, fair disclosure is in – that’s been true at least since Reg FD took effect in 2000.

The recent SEC case involves Lawrence Polizzotto, former head of investor relations for First Solar, Inc., an Arizona firm whose financing was part of the political controversy a couple of years ago over Energy Department loans to renewable energy companies. On Friday, Polizzotto agreed to pay a $50,000 penalty in the selective disclosure case and accepted a cease-and-desist order with the SEC, without admitting guilt.

Here’s the scenario the SEC painted: In September 2011 Polizzotto attended an investor conference with First Solar’s CEO at the time. The firm had conditional commitments from the Energy Department for three loan guarantees totaling $4.5 billion, and the CEO expressed confidence  the company would receive that backing.  Two days later, word came that First Solar would not get at least one of the guarantees. According to the SEC:

A group of employees including Polizzotto and one of First Solar’s in-house lawyers began discussing how and when the company should publicly disclose the loss of the loan guarantee.  The company lawyer specifically noted that when the company received official notice from the Energy Department, “we would not have to issue a press release or post something to our website the same day.  We would, though, be restricted by Regulation FD in any [sic] answering questions asked by analysts, investors, etc. until such time that we do issue a press release or post to our website …”

Comment: When lawyers talk, IROs should listen. SEC went on …

Polizzotto violated Regulation FD during one-on-one phone conversations with approximately 20 sell-side analysts and institutional investors on Sept. 21, 2011 – the day after a Congressional committee sent a letter to the Energy Department inquiring about its loan guarantee program and the status of conditional commitments, including three involving First Solar.  This Congressional line of inquiry caused concern within the solar industry about whether the Energy Department would be able to move forward with its conditional commitments.

Analysts began issuing research reports about the Congressional inquiry, and analysts and investors began calling Polizzotto. Despite knowing that the company had not yet publicly disclosed anything, Polizzotto drafted several talking points that effectively signaled that First Solar would not receive one of the three loan guarantees.  His talking points emphasized the high probability of receiving two of the loan guarantees and the low probability of receiving the third.

Polizzotto delivered his talking points in the one-on-one calls with analysts and institutional investors, and he directed a subordinate to do the same.  Polizzotto went even further than his talking points when he told at least one analyst and one institutional investor that if they wanted to be conservative, they should assume that First Solar would not receive one of the loan guarantees.

So there it is: material nonpublic information. The proof of materiality is that, when First Solar learned of the one-on-one disclosures and issued a press release the next day, its stock dropped 6 percent.

If you want guidance on Regulation FD or its application, ask your securities counsel. You can read Reg FD here, see the Polizzotto order here or explore links on the SEC’s selective disclosure webpage.

The philosophical heartbeat of Reg FD was captured by Michele Wein Layne, director of the SEC’s Los Angeles office: “All investors, regardless of their size or relationship with the company, are entitled to the same information at the same time.”

© 2013 Johnson Strategic Communications Inc.

News affects stock price? You bet

February 25, 2010

We can all probably guess the least favorite news in the eyes of investors. Yes, it’s the earnings warning: Pre-announcing a disappointment in the numbers produces the most negative response in stock price, a new study shows.

The CXO Advisory blog, which reports daily on studies of investing theory and practice, provides a good summary of a February 2010 working paper by three finance professors who looked at the impact of 285,917 news releases from 2006 to 2009. Or you can access the original paper here.

Negative news hits stock prices harder, on average, than positive news helps, the study shows. And announcements of bad news also tend to be anticipated by stock price declines, suggesting the possibility of leaks.

The five most negative announcements for stock price impact? Pre-reporting bad financial results, FDA rejections of medical products, loss of a customer, poor financial performance on regular reporting dates, and product defects.

The five most positive? Pre-reporting better than expected financial results, share buybacks, FDA approvals of pharmaceuticals, spin-offs and EU pharma approvals.

During the financial crisis, context seemed to change the market’s reaction to news announcements: Issuances of debt or secondary equity offerings, for example, weren’t seen as such negative events during a time when weaker companies couldn’t access the capital markets.

The authors, who classify corporate announcements into nine major categories and 52 subcategories, believe regulatory changes such as Regulation FD in 2000 and Sarbanes-Oxley in 2002 have given news releases a more powerful impact on the market by encouraging an instantaneous, direct-to-shareholder communication mode. In fact, the professors observe:

Possibly as a result of the vagueness of the SEC’s information release requirements firms err on the side of disclosing too much information. Additionally, firms may prefer to release immaterial news in order to attract the attention of potential investors.

One possible use of this study for IR is to help gauge materiality of various kinds of events – the loss or gain of a major customer, for example – based on the average impact that similar events have had on companies’ stock prices.

© 2010 Johnson Strategic Communications Inc.