What’s all this fussydoo* about Apple and RegFD?

Last week there was a bushel of securities law / capital markets conjecture regarding whether Apple’s CEO, Tim Cook, violated RegFD with a rare mid-quarter update via an email to CNBC’s Jim Cramer.

“Obviously I can’t predict the future, but our performance so far this quarter is reassuring,” Cook wrote.

The media exploded with pundit-ism from every corner of the web, even touting the SEC’s 2012 social media relaxed view on RegFD. It all seemed to be an unnecessary “news-jacking” and knee-jerking reaction. Most of it was trying to make controversy where none was needed.

That email to Mr. Cramer was sent on Monday. Whether it was selective disclosure or not, Apple’s IR and regulatory teams had until the next trading day to correct any possible RegFD gaffe by simply filing a Form 8-K.

8-K CYA SEC ASAP

Form 8-K requires public companies to make prompt disclosures about a large number of specified events – including, as required by Regulation FD, a possible slip of non-public information in an exclusive, selective manner

Issuers need to ensure that they have in place disclosure controls and procedures that will permit them to monitor developments that could trigger a Form 8-K filing requirement. Apple certainly does. They have a top IR team and probably more in-house counsel than I can imagine.

Generally, a Form 8-K must be filed within four business-days after the day of the incident of a reportable (potential) material faus pax. The following table indicates the day of the week on which Form 8-K filings will generally be due under the standard four-business-day deadline:

Day of selective disclose Filing deadline
Sunday Thursday
Monday Friday
Tuesday Monday
Wednesday Tuesday
Thursday Wednesday
Friday Thursday
Saturday Thursday
Our free guidebooks discuss 8-k at great detail. They are free. Request your copy here.

Our free guidebooks discuss Form 8-k in painful detail. They are free. Request your copies here.

This is an 8-K at it’s most simplistic. As with any regulation, there are exceptions including:

  • Earnings announcements
  • Creation of a contingent obligation under certain off-balance sheet arrangements
  • Termination of employees as part of a plan to exit an activity The appointment of certain new officers
  • Material impairments identified in connection with preparation, review or audit of financial  statements
  • Temporary suspension of trading under the company’s employee benefit plans
  • Company’s decision regarding the frequency of future shareholder advisory votes on executive compensation
  • Voluntary disclosures
  • RegFD violation

Our free guidebooks discuss Form 8-K in painful detail. They are free. Request your copies here. Review our EDGAR services here.

*Not a real word used in securities law or capital markets.

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3 responses to “What’s all this fussydoo* about Apple and RegFD?

  1. Two points (I am NOT a securities lawyer):

    –I get your point that AAPL COULD have filed a form 8K…but DID they?

    –More importantly, my understanding of the Reg FD safe harbor is that it only applies to inadvertent violations. One could argue a selective email to an individual is far from inadvertent.

    Bottom line: companies should ever discuss intra-quarter trends for any reason whatsoever.

  2. Import to have read Reg. FD before writing an article about it, no?

    Reg FD specifically carves out a certain segment of the public from Reg. FD disclosure violation issues. Any guesses as to which group is exempt?

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