17 C.F.R. § 244.100

General rules regarding disclosure of non-GAAP financial measures

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(a) Whenever a registrant, or person acting on its behalf, publicly discloses material information that includes a non-GAAP financial measure, the registrant must accompany that non-GAAP financial measure with:

(1) A presentation of the most directly comparable financial measure calculated and presented in accordance with Generally Accepted Accounting Principles (GAAP); and

(2) A reconciliation (by schedule or other clearly understandable method), which shall be quantitative for historical non-GAAP measures presented, and quantitative, to the extent available without unreasonable efforts, for forward-looking information, of the differences between the non-GAAP financial measure disclosed or released with the most comparable financial measure or measures calculated and presented in accordance with GAAP identified in paragraph (a)(1) of this section.

(b) A registrant, or a person acting on its behalf, shall not make public a non-GAAP financial measure that, taken together with the information accompanying that measure and any other accompanying discussion of that measure, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the presentation of the non-GAAP financial measure, in light of the circumstances under which it is presented, not misleading.

(c) This section shall not apply to a disclosure of a non-GAAP financial measure that is made by or on behalf of a registrant that is a foreign private issuer if the following conditions are satisfied:

(1) The securities of the registrant are listed or quoted on a securities exchange or inter-dealer quotation system outside the United States;

(2) The non-GAAP financial measure is not derived from or based on a measure calculated and presented in accordance with generally accepted accounting principles in the United States; and

(3) The disclosure is made by or on behalf of the registrant outside the United States, or is included in a written communication that is released by or on behalf of the registrant outside the United States.

(d) This section shall not apply to a non-GAAP financial measure included in disclosure relating to a proposed business combination, the entity resulting therefrom or an entity that is a party thereto, if the disclosure is contained in a communication that is subject to § 230.425 of this chapter, § 240.14a-12 or § 240.14d-2(b)(2) of this chapter or § 229.1015 of this chapter.

Notes to § 244.100:

1. If a non-GAAP financial measure is made public orally, telephonically, by Web cast, by broadcast, or by similar means, the requirements of paragraphs (a)(1)(i) and (a)(1)(ii) of this section will be satisfied if:

(i) The required information in those paragraphs is provided on the registrant's Web site at the time the non-GAAP financial measure is made public; and

(ii) The location of the web site is made public in the same presentation in which the non-GAAP financial measure is made public.

2. The provisions of paragraph (c) of this section shall apply notwithstanding the existence of one or more of the following circumstances:

(i) A written communication is released in the United States as well as outside the United States, so long as the communication is released in the United States contemporaneously with or after the release outside the United States and is not otherwise targeted at persons located in the United States;

(ii) Foreign journalists, U.S. journalists or other third parties have access to the information;

(iii) The information appears on one or more web sites maintained by the registrant, so long as the web sites, taken together, are not available exclusively to, or targeted at, persons located in the United States; or

(iv) Following the disclosure or release of the information outside the United States, the information is included in a submission by the registrant to the Commission made under cover of a Form 6-K.

Notes of Decisions

Cited in 9 cases (4 in the last 5 years), 2019–2023 · leading case: Lawson v. Klondex Mines Ltd. (D. Nev. 2020).

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Lawson v. Klondex Mines Ltd. (D. Nev. 2020). · cites it 2× “This first amended complaint alleges 2 causes of action—(1) violations 26 of Section 14(a) of the SEA, Rule 14a-9, and 17 C.F.R. § 244.100 against all defendants; and (2) 27 violations of Section 20(a) of the SEA against the individual named defendants.”

Mack v. Resolute Energy Corp. (D. Del. 2020). · cites it 2× “Plaintiffs allege that the Proxy violated Section 14(a) of the Securities Exchange Act because: (1) the Proxy contained material non-GAAP? financial projections in support of the merger consideration without complying with Regulation G ( 17 C.F.R. § 244.100 ); (2) the reliance…”

Michael Cohn v. SunCoke Energy Partners LP (3rd Cir. 2021). “§ 78n(a), and two rules and regulations promulgated thereunder: 17 C.F.R. § 244.100 and Rule 14a-9, respectively.”

Hayden v. Portola Pharm., Inc. (N.D. Cal. 2021). “” 17 C.F.R. § 244.100 . Most relevant to this case, a new GAAP rule (“ASC 606”) that went into effect in 2018 set a standard for how companies report revenues from contracts for the sale of goods.”

Woodford Eurasia Assets Ltd. v. Lottery.com, Inc. (D. Del. 2023). “Injunction Analysis Success on the Merits: Plaintiffs assert that Defendants violated Section 14(a) of the Exchange Act and Rule 14a-9 and 17 C.F.R. § 244.100 (Count I) and Section 20(a) of the Exchange Act (Count II).”

Pullos v. Akorn, Inc. (N.D. Ill. 2019). “” 17 C.F.R. § 244.100 (d); see also Securities Exchange Commission Discl.”

Sec. & Exch. Comm'n v. Carroll (S.D.N.Y. 2020). “13a-14; and Rule 100(b) of Regulation G, 17 C.F.R. § 244.100 , by allegedly manipulating the publicly reported quarterly figures for same store net operating income (“SS- NOI”), which measures the amount of income attributable to a static pool of real estate properties.”

Stein v. Contango Oil & Gas Co. (S.D.N.Y. 2021). “14a-9 and 17 C.F.R. 244.100, in connection with a proposed merger between Contango and Independence Energy and its affiliates.”

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