Today, the SEC filed rare enforcement actions against Office Depot, Inc. and two executives alleging violations of its fair disclosure regulations ("Reg FD"). The SEC alleges
that the defendants selectively conveyed to analysts and institutional investors that the company would not meet analysts' earnings estimates.
According to the SEC, near the end of Office Depot's second quarter for 2007, CEO Stephen A. Odland and then-CFO Patricia A. McKay made a series of one-on-one calls to analysts. The company did not directly state that it would not meet analysts' expectations, but the SEC claims that the message was "signaled" in various ways such as references to recent public statements of other companies about the impact of the slowing economy on their earnings, and to Office Depot's prior cautionary public statements. Analysts allegedly got the hint, and promptly lowered their estimates for the period.
All of the defendants have agreed to settle. Office Depot will pay a $1 million penalty, and Odland and McKay will pay $50,000 each.
The SEC has brought at least one other case under Reg FD in 2010. In March 2010, the SEC filed
a Reg FD case against Presstek, Inc.
and its former CEO, Edward J. Marino.