United States: Companies Should Look Closely At Risk Factor Disclosure In Light Of The Current Financial Crisis

Last Updated: February 23 2009
Article by Brian R. Rosenau

When preparing annual reports on Form 10-K or Form 20-F, companies should always revisit their risk factor disclosure to ensure that their disclosure is up to date and includes a discussion of the most significant risk factors that could affect the company's business, operations, industry, financial position or future financial performance. In light of the current financial crisis, public companies should take a careful look at their existing risk factor disclosure to determine whether updates are needed in order to adequately describe the risks that companies expect to face.

A public company's risk factor disclosure should be specific to its individual situation, and should not merely contain risks that could apply to every issuer. As such, public companies need to examine how the current financial crisis is affecting them, so that they may determine whether and what type of updated risk factor disclosure is necessary. Risk factor disclosure regarding the current financial crisis may include, among other things, the effect that the current financial crisis is having on a company generally, the impact the financial crisis may have on a company's previously stated growth plans, a company's inability to access the capital markets and the impact that may have on the balance sheet, the ability of a company's customers to pay for goods and services or the ability of a company's suppliers to service the company in a timely manner.

Public companies who file annual reports on Form 10-K should also be aware that the Securities and Exchange Commission requires such companies to disclose, in their quarterly reports on Form 10-Q, any material changes from the risk factors previously disclosed in their annual reports on Form 10-K. Companies must therefore, at a minimum, review risk factor disclosure on a quarterly basis in order to determine whether and what type of updated risk factor disclosure needs to be included in a quarterly report on Form 10-Q.

Up to date risk factor disclosure may also provide a company the basis to take advantage of the safe-harbors for forward-looking statements provided in Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as well as the "bespeaks caution" defense that has been developed through case law. The safe-harbors and the "bespeaks caution" defense provide that, if certain requirements are met, forward-looking statements may not be used as the basis for private securities fraud claims.1 Forward-looking statements are statements made by a company that relate to its current expectations regarding its financial condition, results of operations, plans, objectives, future performance or business.

One of the requirements that a public company must meet in order to take advantage of the safe-harbors and the "bespeaks caution" defense is that the forward-looking statements must be accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those contained in the forward-looking statements.2 Such cautionary statements must be specifically related to the company and the forward-looking statements that it is making; cautionary statements regarding risks that could apply to every issuer will not be sufficient to receive the protection of the safe-harbors and the "bespeaks caution" defense.3 Accordingly, when preparing annual reports on Form 10-K or Form 20-F and quarterly reports on Form 10-Q, public companies should review their risk factor disclosures (especially in light of the current financial crisis) to ensure that such disclosures are up to date and specifically identify potential risks facing the company.

In addition, although smaller reporting companies are not specifically required to include risk factor disclosure in their annual reports on Form 10-K or their quarterly reports on Form 10-Q, such issuers may nevertheless wish to include risk factor disclosure in order to take advantage of some of the protections provided by such disclosure. A smaller reporting company including risk factor disclosure in its annual report on Form 10-K or its quarterly report on Form 10-Q should also consider the issues discussed above.


1 See Securities Act of 1933 § 27A(c), 15 U.S.C. § 77z-2(c); Securities Exchange Act of 1934 § 21E(c), 15 U.S.C. § 78u-5(c); P. Stolz Family P'ship L.P. v. Daum, 355 F.3d 92, 96 (2d Cir. 2004); In re Donald J. Trump Sec. Litig., 7 F.3d 357, 371 (3d Cir. 1993).

2 Securities Act of 1933 § 27A(c)(1)(A)(i); Securities Exchange Act of 1934 § 21E(c)(1)(A)(i); P. Stolz Family P'ship L.P., 355 F.3d at 96; Trump, 7 F.3d at 371.

3 See, e.g., P. Stolz Family P'ship L.P., 355 F.3d at 97; Trump, 7 F.3d at 371-72.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions