OTC Markets OTC Pink Common Disclosure Issues

In 2021, OTC Markets Group provided guidance about public disclosures that companies are required to provide to reach the current information tier on the OTC MARKETS OTC Pink. Today, that information is just as relevant as ever.

OTC Markets Group requires public disclosure from the officers and directors of public companies on the OTC Pink so that investors can have the opportunity to analyze company disclosures, check other information sources, and do their own due diligence in researching companies and the people involved before making any investment.  Below is an overview, as provided by OTC Markets Group, of the procedures and some of the common reasons why reports published on the OTC Markets platform do not qualify a company to move up to the OTC Pink Limited or OTC Pink Current Information tiers – even when a company has filed a recent financial report.

The Disclosure Process  

For broker-dealers to publicly publish their price quotations, a public company must fully provide basic investor information per SEC Rule 15c2-11 and its ARS disclosure guidelines.  In its role as a Qualified Interdealer Quotation System, OTC Markets monitors ongoing company disclosure and identify for broker-dealers which securities have made the required information publicly available. 

Simply publishing a report does not automatically result in a tier/status change for a given security. Rather, once a report is published, an analyst will first process it to confirm the availability of information required under SEC Rule 15c2-11  standards. For companies utilizing the Alternative Reporting Standard, OTC Markets confirms confirm that the requirements of the Pink Basic Disclosure Guidelines for the Current Information and Limited Information tiers are met. 

When OTC Markets identifies incomplete company disclosure, errors, or inconsistencies within company disclosures, OTC Markets notifies the company and work with them to submit the amended disclosures.    

OTC Markets does not conduct merit reviews.  The OTC Markets’ automated processes and analyst procedures are designed to monitor that a baseline of required information is publicly available in a consistent format. Importantly, companies that do not wish to undertake this process to qualify for the Pink Current or Pink Limited designation under the Alternative Reporting Standard always have the option to register their securities and become SEC Reporting, or have their securities quoted on the Expert Market.  

For reference, more information about this OTC Markets process can be found here. 

Incomplete Disclosure 

With over 11,000 companies quoted on the OTC Markets – the details matter.  One of the most common issues faced is incomplete information.  Investors should look at whether the company has posted all the required information in its Disclosure Statement.  OTC Markets includes a fillable form on the OTC Markets website to help guide companies through this process.    

Common examples include not publishing the names of beneficial owners, controlling corporate shareholders, or convertible noteholders. Companies often overlook this requirement, yet this level of detail is an essential part of understanding who has a controlling interest in the company.  

OTC Markets also frequently identifies incomplete share issuance history and failure to report all convertible notes issued or outstanding during the required period. This information is important for an investor, as is including a change in a security’s total shares outstanding and understanding potential dilution risks.   

Mislabeled Information and Inconsistencies 

Quite often, OTC Markets receives reports that filings are labeled incorrectly (e.g., “Management Discussion” instead of “Quarterly Report”). Or, when uploading, a company might publish a report with an incorrect period end date that is inconsistent with the actual reporting period. While these may appear to be insignificant errors – OTC Markets will require the company to adjust the report – so that OTC Market’s systems can process it correctly and so that investors can find the information and disclosures they are looking for.   

OTC Pink Companies are also required to list the correct reporting periods on the title page.  Investors should look for clearly labeled reports with corresponding time periods that match.  If this information is missing or inaccurate, it cannot be properly displayed.  

It is important to understand that the officers and directors of public companies are responsible for company disclosure and providing accurate and complete investor disclosure. 

Ensuring that investors have access to material information so they can make informed investment decisions is critical to efficient market pricing and a cornerstone of federal and state securities laws.   

Incomplete Financial Reports  

To meet the minimum information standards for Rule 15c2-11 and to qualify for OTC Pink Limited or OTC Pink Current, companies must publish financial statements for the Fiscal Year-End within the past 16 months. OTC Markets Group requires financial reports to be prepared according to U.S. GAAP or International Financial Reporting Standards (IFRS); they are not required to be audited.  Financial Reports must include each of the following: Balance Sheet, Statement of Income, Statement of Cash Flows, Statement of Retained Earnings (Statement of Changes in Stockholders’ Equity), Notes to Financial Statements and an Audit Letter if the financials have been audited. 

Companies will sometimes publish financial reports that are missing required financial statements, have missing or inadequate notes, or have significant errors (e.g., unbalanced Balance Sheet). These deficiencies mean that the security will continue to trade on the Expert Market or will not qualify to move to OTC Markets Pink Current Information tier until the issue is rectified.   

The Attorney Letter 

To qualify for the Current Information tier, companies must make the following information publicly available on a timely basis (90 days after fiscal year-end for Annual Reports; 45 days after each fiscal quarter end for Quarterly Reports).   

• Financial Statements: Two most recent Annual Reports and any subsequent Quarterly Reports   
• Disclosure Statement: Most recent Annual Report and any subsequent Quarterly Reports
• Audit opinion letter or an Attorney Letter covering all the requirements of the Attorney Letter Guidelines (non-audited companies) 

The Attorney Letter is an alternative to having audited annual financial statements. To remain in the Current Information tier, companies must post a new Attorney Letter within 120 days of their fiscal year-end.  

The purpose of the Attorney Letter is to confirm that an attorney, who is permitted to practice before the SEC, has examined the company’s disclosure and determined that the information constitutes adequate current information and complies with the Guidelines. However, publishing an Attorney Letter does not guarantee that a company will move to the Current Information tier. Securities Attorneys must follow a detailed set of guidelines when preparing these letters, and the letters are often not in accordance with those guidelines. OTC Markets works with the issuer’s securities attorney if they have questions about the guidelines, but it is ultimately the securities attorney’s responsibility to review the content of the disclosures. There are certain legal and other service providers, the OTC Markets has prohibited for not meeting their professional responsibilities including securities lawyers and accountants.  

If you are interested in learning more about OTC Market reporting standards, visit the Information for Pink Companies section of the OTC Markets website.  A summary of many of the frequently asked questions received by OTC Markets can also be found in their 15c2-11 Resource Center. 

To speak with a Securities Attorney, please contact Brenda Hamilton at 200 E Palmetto Rd, Suite 103, Boca Raton, Florida, (561) 416-8956, or by email at [email protected]. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates | Securities Attorneys
Brenda Hamilton, Securities Attorney
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Boca Raton, Florida 33432
Telephone: (561) 416-8956
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