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Oh Look, a Non-GAAP Enforcement Action!
Thursday, January 19, 2017

Financial reporting executives might want to know that the Securities and Exchange Commission just dinged a $1 billion marketing firm for faulty non-GAAP reporting—the latest sign that the SEC takes these reporting issues seriously.

The culprit was MDC Partners, based in New York. The SEC fined MDC $1.5 million for two offenses: failing to disclose all CEO perks, and creating a non-GAAP metric called “organic revenue growth” that didn’t pass the smell test.

We’ll put aside the non-disclosure of CEO perks, since that has been a financial reporting no-no for quite a while. The non-GAAP metric, however, is one of the first sanctions we’ve seen since the SEC started talking about possible abuse of non-GAAP reporting last year and vowed an industry crackdown.

So what happened? According to the SEC’s complaint, from 2012 into 2014, MDC started disclosing “organic revenue growth” in its earnings releases. That metric was supposed to be revenue excluding the effects of acquisitions and foreign currency exchange. OK, nothing unusual so far.

In that same period, however, MDC also began reconciling a third item, stemming from a change in its revenue recognition from gross revenue to net revenue, for subsidiaries it owned. MDC never disclosed the existence of that third reconciling item to investors—and full reconciliation of a non-GAAP metric back to its closest GAAP counterpart (in this case, plain old revenue) is required under SEC rules.

To be fair, MDC also flouted a few other SEC reporting rules with other non-GAAP metrics, such as EBITDA, free cash flow, and EBITDA margin. But those violations were more about how MDC emphasized the those metrics in its filings, not about whether metric itself was correct.

We don’t know how much of the $1.5 million in fines stemmed from non-GAAP abuses, versus the failure to disclose CEO perks. Still, the SEC said it was going to crack down on non-GAAP abuses, and now we have proof that it’s doing so.

You can check the Calcbench blog archives for our previous posts about non-GAAP metrics; and our databases do include earnings releases and Form 10-Q quarterly reports with their non-GAAP reconciliation. We suspect this issue won’t go away any time soon in 2017.


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