End the Quiet Period

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun
The New York Sun
NEW YORK SUN CONTRIBUTOR

The Securities and Exchange Commission is pressing the following method of protecting investors — preventing them from getting information. That’s the logic of the agreement between the SEC and salesforce.com to delay a planned initial public offering because the company cooperated with an article that appeared in last month’s New York Times.

It’s not that the company made any misleading representations in the Times article; the problem seems to be that it talked to the press at all. The absurdity of the situation is highlighted by a Bloomberg News report: “Salesforce.com Inc. said it halted its $85 million initial public offering last month because Chief Executive Officer Marc Benioff may have violated securities laws by speaking to a newspaper. Benioff’s interview with the New York Times, published May 9, may have disclosed information that wasn’t in the company’s Securities and Exchange Commission filing, Salesforce.com said in a SEC filing today.”

Got that? The SEC is alarmed that newspaper readers — that is, investors — may have found out more information in advance of a stock offering. The salesforce.com example is just one among many. Almost every article you read lately about Google includes a phrase to the effect that the company declined to comment because of a quiet period in advance of a planned offering. The effect is to deprive the investing public and the company’s customers of useful information.

“From a policy standpoint,”the SEC explains, “regulating communications during the offering process can be justified as a reasonable balancing of the incentives that the process creates for participants to stimulate interest in an issuer’s securities. During the offering process ‘the increased compensation to distributors and the compressed period of the selling effort, as well as the issuer’s interest in obtaining funds, set up a situation in which potential conflicts of interest between investors and sellers are enhanced.'”

Those potential conflicts of interest strike us as a reason to allow investors more information in the run-up to the offering, not less. The SEC admits that the regulations regarding the pre-offering “quiet period” are vague. Its Web site explains, “The term ‘quiet period,’ also referred to as the ‘waiting period,’ is not defined under the federal securities laws. The quiet period extends from the time a company files a registration statement with the SEC until SEC staff declares the registration statement ‘effective.’ During this period, the federal securities laws limit what information a company and related parties can release to the public.”

The effort is to avoid a violation of Section Five of the Securities Act of 1933. It may be that the Securities Act of 1933 was never such a hot idea. But certainly, restrictions that stem from a 1933 law are worth revising to fit the circumstances of today, when electronic databases and Web sites make newspaper articles widely available to readers and potential investors worldwide.

Better yet, a professor at Yale Law School, Roberta Romano, has suggested, either make the SEC registration process optional or allow the 50 states to establish competing systems of securities laws and then let companies choose the most favorable, the way that many companies now choose to incorporate in Delaware because of its legal system. How else to confront the silliness of Washington thinking that it serves the public interest to discourage companies from talking to the press?

The New York Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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