This article is Part II in a series about MD&A Modernization. See Part I
The rule’s transition provisions provide a mandatory transition date but also allow voluntary early compliance. The mandatory transition date is each company’s first fiscal year that ends after August 9, 2021, which is 210 days after the effective date. Companies may voluntarily apply the new rule, on an S-K item-by-item basis, in any filing made on or after the effective date of February 10, 2021.
This means a company that files a Form 10-K on or after February 10, 2021 has the option to early implement this new MD&A (S-K Item 303) guidance. If a company has not implemented the rule early, as we suggested in the earlier post, this is a good project to put on our to-do list for the summer. Additionally, implementation of the new rule allows companies to look for other opportunities to improve their MD&A disclosure.
This article explores the first of the changes to the MD&A requirements, the addition of an objective to S-K Item 303.
A clear writing objective is crucial to effective business writing such as MD&A. Before this new rule, the most recent statement of the MD&A objective was in FR 72, the 2003 MD&A release which states:
The purpose of MD&A is not complicated. It is to provide readers information “necessary to an understanding of [a company’s] financial condition, changes in financial condition and results of operations.” The MD&A requirements are intended to satisfy three principal objectives:
This articulation of MD&A’s objective is over 17 years old, but it has never been part of the core guidance for MD&A in S-K Item 303. In the new rule, the SEC included a writing objective as part of S-K Item 303 and modernized the language:
229.303 (Item 303) Management’s discussion and analysis of financial condition and results of operations.
(a) Objective. The objective of the discussion and analysis is to provide material information relevant to an assessment of the financial condition and results of operations of the registrant including an evaluation of the amounts and certainty of cash flows from operations and from outside sources. The discussion and analysis must focus specifically on material events and uncertainties known to management that are reasonably likely to cause reported financial information not to be necessarily indicative of future operating results or of future financial condition. This includes descriptions and amounts of matters that have had a material impact on reported operations, as well as matters that are reasonably likely based on management’s assessment to have a material impact on future operations. The discussion and analysis must be of the financial statements and other statistical data that the registrant believes will enhance a reader’s understanding of the registrant’s financial condition, cash flows and other changes in financial condition and results of operations. A discussion and analysis that meets these requirements is expected to better allow investors to view the registrant from management’s perspective.
By emphasizing the purpose of MD&A at the outset of Item 303, the proposal was intended to provide clarity and focus to registrants as they consider what information to discuss and analyze. The proposal was also intended to facilitate a thoughtful discussion and analysis, and encourage management to disclose factors specific to the registrant’s business, which management is in the best position to know, and underscore materiality as the overarching principle of MD&A.
Registrants should regularly revisit these objectives in Item 303(a) as they prepare their MD&A and consider ways to enhance the quality of the analysis provided. These objectives provide the overarching requirements of MD&A and apply throughout amended Item 303. As such, they emphasize a registrant’s future prospects and highlight the importance of materiality and trend disclosures to a thoughtful MD&A.
The Final Rule also focused on the principles-based requirements for MD&A:
[W]e continue to believe that MD&A’s materiality-focused and principles-based approach facilitates disclosure of complex and often rapidly evolving areas, without the need to continuously amend the text of the rule to update or impose additional prescriptive requirements. These amendments are intended to further emphasize these goals.
This objective will help companies improve MD&A. Based on this new objective, here are three key issues to remember in drafting and reviewing MD&A:
The updated objective of MD&A and these three framing concepts help us understand what we must communicate to investors and are the foundation for effective MD&A disclosure.
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