01-30414. Cautionary Advice Regarding the Use of “Pro Forma” Financial Information in Earnings Releases

AGENCY:

Securities and Exchange Commission.

SUMMARY:

The Securities and Exchange Commission is issuing a statement regarding the use by public companies of “pro forma” financial information in earnings releases.

FOR FURTHER INFORMATION CONTACT:

John M. Morrissey, Deputy Chief Accountant, at 202-942-4400, or Paula Dubberly, Chief Counsel of the Division of Corporation Finance, at 202-942-2900.

SUPPLEMENTARY INFORMATION:

As we approach year end, we believe it is appropriate to sound a warning to public companies and other registrants who present to the public their earnings and results of operations on the basis of methodologies other than Generally Accepted Accounting Principles (“GAAP”). This presentation in an earnings release is often referred to as “pro forma” financial information. In this context, that term has no defined meaning and no uniform characteristics. We wish to caution public companies on their use of this “pro forma” financial information and to alert investors to the potential dangers of such information.

“Pro forma” financial information can serve useful purposes. Public companies may quite appropriately wish to focus investors' attention on critical components of quarterly or annual financial results in order to provide a meaningful comparison to results for the same period of prior years or to emphasize the results of core operations. To a large extent, this has been the intended function of disclosures in a company's Management's Discussion and Analysis section of its reports. There is no prohibition preventing public companies from publishing interpretations of their results, or publishing summaries of GAAP financial statements.

Moreover, as part of our commitment to improve the quality, timeliness, and accessibility of publicly available financial information, we believe that—with appropriate disclosures about their limitations—accurate interpretations of results and summaries of GAAP financial statements taken as a whole can be quite useful to investors.

Nonetheless, we are concerned that “pro forma” financial information, under certain circumstances, can mislead investors if it obscures GAAP results. Because this “pro forma” financial information by its very nature departs from traditional accounting conventions, its use can make it hard for investors to compare an issuer's financial information with other reporting periods and with other companies.

For these reasons, we believe it is appropriate to alert public companies and their advisors of the following propositions:

First, the antifraud provisions of the federal securities laws apply to a company issuing “pro forma” financial information. Because “pro forma” information is information derived by selective editing of financial information compiled in accordance with GAAP, companies should be particularly mindful of their obligation not to mislead investors when using this information.

Second, a presentation of financial results that is addressed to a limited feature of a company's overall financial results (for example, earnings before interest, taxes, depreciation, and amortization), or that sets forth calculations of financial results on a basis other than GAAP, raises particular concerns. Such a statement misleads investors when the company does not clearly disclose the basis of its presentation. Investors cannot understand, much less compare, this “pro forma” financial information without any indication of the principles that underlie its presentation. To inform investors fully, companies need to describe accurately the controlling principles. For example, when a company purports to announce earnings before “unusual or nonrecurring transactions,” it should describe the particular transactions and the kind of transactions that are omitted and apply the methodology described when presenting purportedly comparable information about other periods.

Third, companies must pay attention to the materiality of the information that is omitted from a “pro forma” presentation. Statements about a company's financial results that are literally true nonetheless may be misleading if they omit material information. For example, investors are likely to be deceived if a company uses a “pro forma” presentation to recast a loss as if it were a profit, or to obscure a material result of GAAP financial statements, without clear and comprehensible explanations of the nature and size of the omissions.

Fourth, we commend the earnings press release guidelines jointly developed by the Financial Executives International and the National Investors Relations Institute and we encourage public companies to consider and follow those recommendations before determining whether to issue “pro forma” results, and before deciding how to structure a proposed “pro forma” statement. A presentation of financial results that is addressed to a limited feature of financial results or that sets forth calculations of financial results on a basis other than GAAP generally will not be deemed to be misleading merely due to its deviation from GAAP if the company in the same public statement discloses in plain English how it has deviated from GAAP and the amounts of each of those deviations.

Fifth, as always, and especially in light of the disclosure that we expect to see accompanying these presentations, we encourage investors to compare any summary or “pro forma” financial presentation with the results reported on GAAP-based financials by the same company. Read before you invest; understand before you commit.

Companies with questions about the use of “pro forma” financial presentations in earnings releases are encouraged to call John M. Morrissey, Deputy Chief Accountant, at 202-942-4400, or Paula Dubberly, Chief Counsel of the Division of Corporation Finance, at 202-942-2900. Investors are encouraged to read our investor alert on “pro forma” financial statements (available at http://www.sec.gov/​investor.shtml).

By the Commission.

Dated: December 4, 2001.

Jonathan G. Katz,

Secretary.