Two years of anticipation over Regulation Fair Disclosure ended this week with more whimper than bang.
In its first-ever enforcement proceeding under the disclosure regulation, the
Securities and Exchange Commission
$250,000 (and entered cease and desist orders against two other companies).
Siebel Systems CEO Tom Siebel's habit of
changing his tune about business conditions got the firm in trouble when his extemporaneous riff at an investment conference last year was deemed a violation of Reg FD.
That penalty has led some to wonder whether executives might become more tight-lipped at investor conferences, such as the one at which Siebel made his comments, and whether investors and even companies may cut back on attendance at such conferences. Overall, however, with Regulation FD already in place for two years, many believe the only fallout may end up being an increased move to Webcast such events to avoid violating the disclosure rule.
"The reason I say I don't think it's going to change things is, when I look at the releases, these are three very straightforward cases of what you should not do," said Lou Thompson, president and CEO of the National Investor Relations Institute, referring to the
three Reg FD actions, including the Siebel case, announced this week. "Quite frankly, I don't even look at them as close calls. Most savvy IR people wouldn't do this."
In the Siebel case, the CEO told investors at a Goldman Sachs technology conference last November that he was "pretty optimistic" about what he was seeing and that IT buying patterns were returning to "normal." Those comments came about three weeks after he said in an earnings call that the environment was "as difficult as any in the history of the industry of the information technology industry" and that he expected things to be "quite tough through the remainder of the year."
SEC officials indicated that the comments likely would not have violated Reg FD had the question-and-answer session with Siebel been Webcast and had the company widely distributed a press release alerting the public of the Webcast in advance.
Siebel Systems did not admit or deny any wrongdoing in the case and noted in a statement that the CEO was unaware the conference was not being Webcast. Spokeswoman Nitsa Zuppas added that Siebel always has gone out of its way to comply with Regulation FD.
"The company's investor relations director knew the conference was not going to be Webcast, and she did not provide that information to the CEO," said Scott W. Friestad, the SEC's enforcement division assistant director. "It's also the case that he
Siebel probably should have asked."
Friestad said in the aftermath of the Siebel fine that he suspects Webcasting will pick up even more momentum than it already has.
Donald Eagon, chairman of NIRI's board and vice president of global communications and investor relations at
, agreed Webcasting may become even more popular following the Siebel fine. He said his company tells conference hosts, "If you're not going to Webcast this, then we probably will be a little more cautious about information that could be borderline material and nonmaterial."
NIRI recommends that its members use Webcasts as often as possible -- not only investor conferences, but also events such as analyst days, according to Thompson. According to a NIRI survey of its members in August 2001, 92% broadcast live Webcasts of their conference calls, up from 66% just 12 months earlier.
But in contrast to Thompson, others said Siebel's comments seemed relatively innocuous and thus did not present such a clear violation of Regulation FD.
"It struck me as a very general statement about business trends," said Ian Murray, a portfolio manager at Straus Asset Management in New York. It was not as if Siebel gave away details about a specific contract or what the company's financial results would be, he added. "For him to get in trouble for something like that kind of worries me."
If CEOs can't even make such general statements without first being certain they are being Webcast, then the question arises whether investors -- and even companies -- should bother attending these conferences anymore. The reason to attend, said Goldman Sachs spokesman Ed Kanaday, is to talk to a company's management and hear an update on a company's business.
Investors echoed that view.
"You'll go because you do get to meet the management," Murray said. "You're an investor; you're an owner of this company. You want to meet the management and hear what they're saying about business."
Investors and IR executives noted there's more to talk about than just financials that would not result in Regulation FD violations. Investors often take advantage of one-on-one meetings to seek clarification on certain issues and talk about such topics as market share and competition.
And for attendees, talking with other investors and sharing information can also be valuable, Murray added.
Meanwhile, companies will continue attending the conferences as well, NIRI's Thompson said. A survey of the institute's members earlier this year found that 5% have cut back on attending such meetings, but 5% have increased their attendance. "We haven't seen any decline in that at all," Thompson said. "I think companies have learned to live with Reg FD."