Corporate America is Telling the Truth — Tips to Assure Reg FD Compliance

With so many voices billowing false narratives and confusion these days, it is sometimes challenging to discern fact from fiction. But amidst all the dubious rhetoric, it’s good to know that sanity still prevails in the world of public companies.

Corporate America is standing out as a beacon of clarity and truth. And this isn’t by accident. It is the result of carefully crafted regulations designed to protect investors and ensure the integrity of the market.

As a refresher, the Securities Act of 1933, affectionately known as the “truth in securities” law, mandates that buyers of securities receive complete, accurate and truthful information before they invest. 

The Securities Exchange Act of 1934, referred to as the “34 Act,” created the Securities and Exchange Commission (SEC) as a body to regulate trading of securities after they have been distributed.

And in the year 2000, the ‘33 and ‘34 Acts were further strengthened by Regulation Fair Disclosure (Reg FD), with the intent of preventing public companies from selectively disclosing important information to certain shareholders and market professionals. Rather, it created a level playing field for all investors by ensuring that material information is disclosed to everyone simultaneously.

As the 25-year mark approaches since Reg FD was enacted, and as the IPO market warms up for the new year, following are a few reminders to help issuers assure compliance:

  • Maintain a formal disclosure policy. Outline procedures for publicly disclosing information, such as through press releases and social media. Press releases are by far the preferred disclosure medium, followed by social media and the company’s website. However, if a company principally uses the latter two vehicles to disclose information vs. press releases, it must ensure that both are widely recognized as the issuer’s primary distribution channels.
  • Train employees. For companies in the process of going public, provide formal Reg FD training – in person or by Zoom – for senior staff and for those who may be privy to sensitive information, and periodically conduct refresher training sessions. Specify who is authorized to communicate with investors and analysts.
  • Anticipate disclosures. Plan ahead if possible, and when doing so, be certain to remind the inner executive circle of the mandate for confidentiality.
  • Review executive presentations. Have an IR advisor or in-house counsel review presentations to be certain they do not contain material non-public information. 
  • Establish black-out periods for trading. Black-out periods can help prevent inadvertent insider trading and Reg FD violations. Some companies limit executives to only trading on a 10b5-1 plan to avoid violations.

Through Reg FD and other SEC mandates, corporations and their leaders are held to stringently high rhetorical standards – and they are doing a good job of adhering to them. Continued compliance requires awareness, regular refreshment, and constant diligent attention.

Roger Pondel, rpondel@pondel.com

Editorial Note: PondelWilkinson has been approved by the California Bar Association to provide Reg FD training to SEC lawyers for MCLE credit, and regularly provides such training to executives of pre-public and publicly traded companies.