One of the more complex traps when presenting non-GAAP measures is this question:
Which source of SEC non-GAAP measure guidance applies to your earnings release:
Reg G, or
S-K Item 10(e)?
In case you are not familiar with Reg G and S-K Item 10(e) and when each of them applies:
Reg G applies when you use a non-GAAP measure in a non-filed source, and
S-K Item 10(e) applies when you use a non-GAAP measure in a filed document.
You can learn more about these two non-GAAP rules in some of the earlier posts on our blog. Here is a post with the basics:
You can also check out our one-hour briefing about non-GAAP measures from March 2016 at:
www.pli.edu/Content/Non_GAAP_Measures_and_Metrics_Getting_it/_/N-1z10vnyZ4n?ID=282910
The trap here is this: You might believe that since an earnings release is not a filed document Reg G is the applicable guidance, and all you have to do is present the most directly comparable GAAP measure and provide a reconciliation.
That is NOT the case. The reason that S-K Item 10(e) applies to your earnings release is actually very subtle. It is in the instructions to Form 8-K. Tucked away in the earnings release 8-K, Item 2.02, is this instruction:
- The requirements of paragraph (e)(1)(i) of Item 10 of Regulation S-K (17 CFR 229.10(e)(1)(i)) shall apply to disclosures under this Item 2.02.
Thus, the first part of S-K Item 10(e) DOES apply to your earnings release, even though it is not “filed” and even though the Item 2.02 8-K is not a filed document!
So, to be very detailed, this part of S-K Item 10(e) applies to year earnings release (there are other requirements in S-K Item 10(e) that do not apply, we won’t list them here):
(e) Use of non-GAAP financial measures in Commission filings. (1) Whenever one or more non-GAAP financial measures are included in a filing with the Commission:
(i) The registrant must include the following in the filing:
(A) A presentation, with equal or greater prominence, of the most directly comparable financial measure or measures calculated and presented in accordance with Generally Accepted Accounting Principles (GAAP);
(B) A reconciliation (by schedule or other clearly understandable method), which shall be quantitative for historical non-GAAP measures presented, and quantitative, to the extent available without unreasonable efforts, for forward-looking information, of the differences between the non-GAAP financial measure disclosed or released with the most directly comparable financial measure or measures calculated and presented in accordance with GAAP identified in paragraph (e)(1)(i)(A) of this section;
(C) A statement disclosing the reasons why the registrant’s management believes that presentation of the non-GAAP financial measure provides useful information to investors regarding the registrant’s financial condition and results of operations; and
(D) To the extent material, a statement disclosing the additional purposes, if any, for which the registrant’s management uses the non-GAAP financial measure that are not disclosed pursuant to paragraph (e)(1)(i)(C) of this section; and
One area the staff will comment on is the “equal or greater prominence” requirement in paragraph (A) above. Here is an example comment:
- We note that in the Financial Highlights section of your press release furnished on Form 8-K, you disclose Total Segment EBITDA, a non-GAAP financial measure, without the disclosure of the most comparable GAAP measure. Please note that under Item 10(e)(1)(i)(A) when a non-GAAP financial measure is presented, the most directly comparable financial measure calculated in accordance with GAAP must be disclosed with equal or greater prominence. Please revise accordingly. See also Instruction 2 to Item 2.02 of Form 8-K.
As always, your thoughts and comments are welcome!