Reg FD: How to Avoid Holiday Legal Headaches
‘Tis the season for company holiday parties. A party can be a great way to blow off steam during an especially stressful time of year in the financial world. While it’s a good idea to unwind in an informal environment, you don’t want Reg FD (Regulation Fair Disclosure) spoiling your fun.
Holiday mixers can bring together a variety of stakeholders like CEO’s, financial advisors, brokers, analysts, and investors. Add in a generous supply of alcohol and you have a recipe for failure to comply with Reg FD.
The good news is that with minimal prior planning, you can easily avoid having the SEC slap an individual or your company with an injunctive relief, such as a cease-and-desist order, monetary fine, and required disclosure of the violation.
First things first: What’s the rule?
The SEC Reg FD rule reads as follows: “Whenever an issuer, or any person acting on its behalf, discloses any material nonpublic information regarding that issuer or its securities to [certain enumerated persons], the issuer shall make public disclosure of that information… simultaneously, in the case of an intentional disclosure; and… promptly, in the case of a non-intentional disclosure.”
The key phrase here is “material nonpublic information.” Material information is anything that a reasonable shareholder would consider important for deciding whether to take some action with respect to a company’s securities.
According to the US Supreme Court, material information includes, among other examples, anything relevant to earnings, mergers, acquisitions, joint ventures or tender offers, new products, and developments regarding customers or suppliers.
That’s quite a list. Ensure that you stay off the SEC’s radar by following these rules:
1. SEC Reg FD applies to ALL company communications.
Don’t think that just because you are at a party and not on official company business, your offhand remark to a shareholder “doesn’t count” as a selective disclosure. A selective disclosure can be intentional or unintentional and Reg FD applies to all types of company communications.
For instance, a CEO’s spontaneous response to an unanticipated question posed during a dinner party with analysts present could reveal information to which all shareholders should have access. If there’s any question, put yourself in your investor’s shoes. If you could see yourself acting on the information provided, then it’s probably off limits.
Unintentional disclosures like the one above trigger an obligation on the part of the company to go public with the information within 24 hours or prior to the beginning of the next trading day. So, the best policy is always “better safe than sorry.”
2. Remind your expanded team of their responsibilities.
It’s not a bad idea this time of year to remind all employees and partners of their confidentiality agreements and other legal obligations. Send a friendly reminder email or call everyone together for a short meeting. Not knowing the law is no excuse, of course, but a lot of headaches can be avoided by taking this simple step.
Specifically, Reg FD rules apply to directors and executive officers; persons performing investor relations or public relations functions; and employees and agents who regularly communicate with securities market professionals and stakeholders. But any employee acting at the direction of senior management is also subject to the law.
3. If you have questions, consult with Finance and Legal.
What do you do if, despite your best efforts, something happens that you believe to be a violation? First, consult with Finance/Investor Relations and Legal internal to your company. The last thing you need is to intensify the problem by trying to sweep it under the rug. So, now is the time to own the problem and deal with it head on.
Your Finance and Legal departments will be able to tell you whether you need to take additional legal steps. Depending on the scope of the violation and whether it’s a fireable offense, you may also need to consult with HR.
Also, by consulting with the experts, you can avoid blowing out of proportion something that might require a simple solution. In many cases, issuing a press release or scheduling a public conference call to answer questions will bring you under compliance with the law.
In short, when it comes to Reg FD, prevention is always your best option. A lot of trouble can be avoided by simply communicating with employees and reminding them of their legal obligations. Let’s make this holiday season SEC free!
If you are looking for more great advice about corporate communications, Audacia Strategies is here for you. We can help you develop a corporate communications strategy that works for you and your whole team. Schedule your free consultation today.
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