Reporting companies must always keep federal securities rules in mind when dealing with publicity and corporate communications. There is a complicated web of SEC rules and guidance that can apply differently depending on:

A company's status as an issuer under the SEC's rules has an impact on how the company can communicate. Examples of relevant categories of issuers include:

The nature and medium of the communication also has a large impact on what rules and guidance apply. The evolution of technology has changed the way companies can communicate with stockholders, customers and the general public and forced companies, their counsel and the SEC to evolve along with it. There has been an evolution from paper filings to quick and broad dissemination of information via EDGAR and press releases. From there, use of company websites and social media by companies and their executives has become almost universal.

Companies and their executives now have access to instantaneously provide information to the entirety of the global capital markets. Despite this transformation, many of the rules and regulations governing the way companies communicate are decades old. In some cases more recent guidance can help match old rules and regulations to modern practices.

In any event, companies and their counsel must be mindful of the medium used to communicate. The same message will need to be communicated in very different, yet consistent ways among various media. For example, information in offering materials, speeches, press releases, earning calls, periodic reports, advertisements, websites, to name a few, will all need to be disseminated keeping specific sets of rules and guidance in mind for each medium while being sure a company is sending a consistent message to avoid violating securities antifraud rules.

Because the concept of "offer" is broad under the securities laws, issuers and underwriters must carefully handle any publicity and communications they undertake when contemplating or conducting a securities offering. Missteps can have potentially severe consequences for the transaction. The ability to communicate also varies greatly depending on whether the company is conducting an unregistered offering with or without general solicitation and if the offering is registered, whether the registration is in the pre-filing, waiting or post-effective periods.

This Toolkit provides resources to help issuers, underwriters and their counsel to understand and navigate the complicated web of rules, regulations and guidance governing reporting company communications, including relevant standard form documents with helpful drafting tips.