At the end of each fiscal quarter, public companies typically issue an earnings release to announce their key financial results and performance. This provides investors with earnings guidance about the company’s expected future performance. A company’s in-house counsel should make sure that the earnings guidance complies with U.S. federal securities law requirements and best practices.

Promptly after the earnings release is published, public companies will file a Form 8-K with the SEC. The Form 8-K will announce the release of earnings results and attach the earnings press release as an exhibit.

The Form 8-K disclosure is reported under Item 2.02, Results of Operations and Financial Condition. Reports on Form 8-K are required to be filed or furnished within 4 business days after the occurrence of certain specified events. An Item 2.02 report on a Form 8-K is just required to be furnished and shall not be deemed to be “filed” for purposes of the Securities Exchange Act of 1934 (Exchange Act). A report that is furnished rather than filed is exempt from certain liability provisions of the Exchange Act. In addition, since disclosures under Item 2.02 are furnished and not deemed filed with the SEC, they are not automatically incorporated by reference in subsequent SEC filings by the company.

A public company will file its earnings release shortly after it files its 10-Q quarterly report or 10-K annual report. The deadline for a public company’s 10-Q or 10-K filing will depend on its filer status.

• If a company has large accelerated filer status, meaning that it has a public float of $700 million or more, its 10-K must be filed no later than 60 days after the fiscal year end and its 10-Q must be filed no later than 40 days after the end of each fiscal quarter.
• If a company has accelerated filer status, meaning that it has a public float $75 million or more but less than $700 million, its 10-K must be filed no later than 75 days after the fiscal year end and its 10-Q must be filed no later than 45 days after the end of each fiscal quarter.
• If a company has non-accelerated filer status, meaning that it’s public float is less than $75 million, its 10-K must be filed no later than 90 days after the fiscal year end and its 10-Q must be filed no later than 45 days after the end of each fiscal quarter.

The earnings release often begins with a list of bullet points highlighting key financial metrics for the most recent fiscal quarter, as compared to the same quarter the prior year. The financial highlights may contain a combination of key performance indicators (KPIs), GAAP financial measures and non-GAAP financial measures. The requirements for the disclosure of non-GAAP financial measures are contained in Regulation G and Item 10(e) of Regulation S-K. As a result of the equal prominence rule under Regulation G, companies must present the comparable GAAP metric with equal or greater prominence than that given to the non-GAAP metric. This can be achieved by presenting the GAAP financial metric before the corresponding non-GAAP measure in the earnings release.

On the company’s investor relations website, they will post a copy of the earnings release, 10-Q or 10-K report, the earnings webcast, and the earnings transcript. They may also post a financial supplement, which is typically an excel spreadsheet that has additional financial data for investors to review.

The end of the earnings release will contain forward-looking statement disclaimers. Section 21E of the Exchange Act provides a safe harbor for forward-looking statements. The forward-looking disclaimer cautions investors that the statements made are based on estimates and assumptions about the future, and that actual results could vary.

In the time period leading up to the earnings release, companies should be careful to avoid Regulation FD violations. The goal of Regulation FD, which stands for “Fair Disclosure”, is to prevent selective disclosure of material non-public information. Companies should take precautions when sharing information with analysts and certain investors in the weeks prior to the earnings release.