Articles Posted in SEC

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The Securities and Exchange Commission issued a report that makes clear that companies can use social media outlets like Facebook and Twitter to announce key information in compliance with Regulation Fair Disclosure (Regulation FD) so long as investors have been alerted about which social media will be used to disseminate such information.

According to an SEC press release:

  • The SEC’s report confirms that Regulation FD applies to social media and other emerging means of communication the same way it applies to company websites.
  • The SEC issued guidance in 2008 clarifying that websites can serve as an effective means for disseminating information to investors if they’ve been made aware that’s where to look for it.
  • The recent report clarifies that company communications made through social media channels could constitute selective disclosures and, therefore, require careful Regulation FD analysis.
  • Regulation FD requires companies to distribute material information in a manner reasonably designed to get that information out to the general public broadly and non-exclusively. It is intended to ensure that all investors have the ability to gain access to material information at the same time.

According to George Canellos, Acting Director of the SEC’s Division of Enforcement “One set of shareholders should not be able to get a jump on other shareholders just because the company is selectively disclosing important information. Most social media are perfectly suitable methods for communicating with investors, but not if the access is restricted or if investors don’t know that’s where they need to turn to get the latest news.”

The SEC’s report of investigation stems from an inquiry the Division of Enforcement launched into a post by Netflix CEO Reed Hastings on his personal Facebook page stating that Netflix’s monthly online viewing had exceeded one billion hours for the first time. The SEC did not initiate an enforcement action or allege wrongdoing by Hastings or Netflix, citing market uncertainty about the application of Regulation FD in this context.

Click here for a full copy of the SEC Report

For additional information on social media legal issues please contact us.

 

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Back in January, we reported that the SEC released a National Examination Risk Alert addressing investment adviser use of social media.

Now, the SEC’s guidance could be particularly important given the “crowdfunding” legislation Congress is currently considering. Crowdfunding is a method of capital formation where groups of people
pool money, typically by use of very small individual contributions, in
order to support the organizers that seek to accomplish a specific goal.

The Senate currently is considering its own version of a crowdfunding
bill, the Democratizing Access to Capital Act of 2011 (S. 1791). S. 1791 provides for registration exemptions for certain crowdfunded securities if the aggregate amount raised through the issuance is $1 million or
less each year and each individual who invests in the security does not
invest more than $1,000. The Senate Committee on Banking, Housing and
Urban Affairs held hearings on December 1 and 14, 2011, regarding this
legislation, but a vote on the bill has not yet occurred.

For more information on this, please see Pillsbury’s recently released Client Alert.