The Market Ticker - Herbalife - Where Is The Disclosure?

Now now folks, it wouldn’t expected that you’d actually disclose that the FTC is looking at you, right?  Would this be considered material and thus subject to reporting?

NEW YORK (AP) — Shares of Herbalife slid in premarket trading Monday after a report that it is the subject of a law enforcement investigation. The nutritional supplements distributor has been defending itself against a hedge fund manager’s accusation that it is a pyramid scheme.

The New York Post reported that late Sunday night that that it found out about the investigation after the Federal Trade Commission released complaints against Herbalife from the past seven years. The FTC was responding to a Freedom of Information Law request by the newspaper. The agency’s documents did not say whether the probe was criminal or civil, according to the Post’s report.

This is what the company had to said in its latest 10-Q about such risks:

The Company is from time to time engaged in routine litigation. The Company regularly reviews all pending litigation matters in which it is involved and establishes reserves deemed appropriate by management for these litigation matters when a probable loss estimate can be made.

As a marketer of dietary and nutritional supplements, and other products that are ingested by consumers or applied to their bodies, the Company has been and is currently subjected to various product liability claims. The effects of these claims to date have not been material to the Company, and the reasonably possible range of exposure on currently existing claims is not material to the Company. The Company believes that it has meritorious defenses to the allegations contained in the lawsuits. The Company currently maintains product liability insurance with an annual deductible of $10 million.

 The 10-Q also discloses:

Our network marketing program could be found to be not in compliance with current or newly adopted laws or regulations in one or more markets, which could prevent us from conducting our business in these markets and harm our financial condition and operating results.

Our network marketing program is subject to a number of federal and state regulations administered by the FTC and various state agencies in the United States as well as regulations on direct selling in foreign markets administered by foreign agencies. We are subject to the risk that, in one or more markets, our network marketing program could be found not to be in compliance with applicable law or regulations. Regulations applicable to network marketing organizations generally are directed at preventing fraudulent or deceptive schemes, often referred to as “pyramid” or “chain sales” schemes, by ensuring that product sales ultimately are made to consumers and that advancement within an organization is based on sales of the organization’s products rather than investments in the organization or other non-retail sales-related criteria. The regulatory requirements concerning network marketing programs do not include “bright line” rules and are inherently fact-based and, thus, we are subject to the risk that these laws or regulations or the enforcement or interpretation of these laws and regulations by governmental agencies or courts can change. The failure of our network marketing program to comply with current or newly adopted regulations could negatively impact our business in a particular market or in general.

We are also subject to the risk of private party challenges to the legality of our network marketing program. Some multi-level marketing programs of other companies have been successfully challenged in the past, while other challenges to multi-level marketing programs of other companies have been defeated. In 2004 Test Ankoop-Test Achat, a Belgian consumer protection organization, sued Herbalife International Belgium, S.V., or HIB, challenging the legality of our network marketing program in Belgium. On November 23, 2011, the Brussels Commercial Court rendered a judgment that HIB is in violation of the Belgian law on Unfair Commercial Practices by establishing, operating or promoting a pyramid scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products. The court ordered cessation of the violation, and a penalty payment of EUR 5,000 per infringement (limited to a total amount of penalty payments of EUR 250,000) starting two months from the official notification of the judgment. HIB has not yet been officially notified of the judgment and therefore the conditions for possible penalty payments have not been fulfilled. The Company believes the trial court’s judgment is flawed legally and factually and on March 8, 2012 filed an appeal of the judgment with the Court of Appeal of Brussels. A preliminary hearing was held on April 2, 2012 setting a briefing schedule. Since then Test Aankoop filed its reply on July 6, 2012 and Herbalife’s response was filed on September 28, 2012. A further exchange of legal briefs is foreseen with the last brief due to be filed on February 12, 2013, after which date the parties can request the Court in Brussels to set a date for presentation of oral arguments. We believe that we have a meritorious basis to appeal this judgment. Nonetheless, the Company has implemented various clarifications and changes which we believe are consistent with the trial court’s ruling pending the appeal procedure. This or other adverse judicial determinations with respect to our network marketing program, or in proceedings not involving us directly but which challenge the legality of multi-level marketing systems, in Belgium or in any other market in which we operate, could negatively impact our business.

Note that this is a prospective disclosure, which is standard boilerplate.  You’ll find litigation risk disclosure in most 10-Qs; it’s utterly normal and expected, since any company can come under legal scrutiny and such might, on a prospective basis, impact results.

But nowhere do I find disclosure in that document of an ongoing FTC investigation that roughly approximates what is discussed by the AP and the NY Post.  Now perhaps there has been fair and full disclosure in the past by the company (after all the complaints apparently range back several years), maybe I missed it in the 10Q (I did just read it this morning) or perhaps this falls into the “we don’t believe this is material” exception, but the market says otherwise, sending the stock down about 10% this morning.

Clearly the market views this disclosure as a “surprise” of the undesirable sort and not something the market was aware of, whether the company believes it to be or not.