How to Handle Updating “Risk Factors”

Our guests – WilmerHale’s Lily Brown and American Express’ David Kanarek – talk about how to handle updating risk factors when it comes to your Form 10-Q and 10-K, including:

1. I think it’s obvious given the liability protection purpose of risk factors, but the risk factor disclosure should speak as of the date you file your 10-Q, not the end of the reporting period, right?
2. Does it matter whether you update risk factors in full in your 10-Q or just include the risk factors that are new or updated?
3. If you’re just including revised or new risk factors, what is the drafting process?
4. Once you include updated & new risk factors in a 10-Q, do you include it your following 10-Qs?
5. What if you have no new or updated risk factors for a 10-Q? Do you need to provide negative disclosure to state that?
6. Can you use a 10-Q to eliminate a risk factor?
7. Have you seen companies use 8-Ks to add or change risk factors in their SEC reporting stream? Or would you file an amendment to a 10-Q or 10-K to change a risk factor?

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