From Heavy Equipment to Cyber – 30 years of MD&A Enforcement

The SEC continues to bring enforcement actions regarding MD&A disclosures. The following memo briefly discusses the seminal Caterpillar enforcement action, the recent NVIDIA enforcement action, and key considerations for public companies regarding MD&A disclosure.

The disclosure requirement regarding material known trends and uncertainties in MD&A was slightly revised in November 2020, but essentially remains the same. Item 303 of Regulation S-K requires companies to disclose in MD&A what management currently knows about facts, trends, and uncertainties that have had, or are reasonably likely to have, a material impact on the company’s business and financial performance.