Wednesday, May 28, 2014

Follow-Up: Of Course, Helping CEOs Understand "What's Considered SEC Material" Is All The Trick


It should be clear that -- for just over 80 years now -- perhaps the single biggest task an experienced SEC lawyer faces with a newly-public CEO (and truth told -- many veteran ones, too!) is instilling the sense that what's in their own head no longer belongs. . . solely to them, as to their impressions of, and insights into, the businesses they run.

The public shareholders "own" those thoughts and perspectives too -- at least the material ones. So no "App" is going to tell the CEO which tweets to "star". S/he must do that on his/her own. And that will be quite a feat of client management (and education), in many cases.

This is why simultaneous dissemination (via formal SEC filings) is the rule of law here in the US. The public trading markets rely on it. And if the CEO is not also an SEC lawyer. . . well, having a law department help make these calls is probably a very wise course. I'm all for free-wheeling discussion of emerging material business trends -- by the CEO -- at all public companies. I just should not have to subscribe to a social media outlet to get the feed. I already own it, as a public shareholder, ab initio. And still, "letting" CEOs tweet wantonly opens the board and company to liability for the CEO's wrong guesses about whether saying "next quarter's backlog is HUGE!" is material inside information (if no company official has as yet press released that information/gloss, for example).

So, as it was in 1934 -- so it is. . . today: helping CEOs know when to "clam up" is an art -- more than a science -- and it matters only scantly that the problem is between the thumbs of the CEO's texting hands -- and no longer so much over wine, in a five star restaurant. The problem is the same. Only the medium of transmission differs. And in some ways -- it is more shapeable. Because it will be. . . in writing. And thus it may be quickly flipped into an SEC Reg FD disclosure filing. [Clearly all SEC counsel ought to follow their client CEO/CFO and CIO Twitter feeds.] Heh.

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