Investor Thoughts on the SEC’s Proposed Disclosure Reform

February 13, 2014

By Farah Merchant, Business Wire

SEC Chair Mary Jo White recently issued a staff report to Congress on disclosure reform initiatives.  The report, mandated by Congress in the 2012 Jumpstart Our Business Startups (JOBS) Act, offers an overview of the SEC’s Regulation S-K.

Regulation S-K pertains to disclosure, and first applies to companies upon IPO that register with the SEC using form S-1, and refers to ongoing reporting requirements in Forms 8-K and 10-K.

SEC reportWhite’s primary concern is the risk of information overload to investors, and she defined information overload as, “a phenomenon in which ever-increasing amounts of disclosure make it difficult for an investor to wade through the volume of information they receive to ferret out the information that is most relevant.”

She believes the guidance needs to be updated as there is repetition in disclosure, where certain items appear in more than one section, i.e., information on legal proceedings that appears in its own section but also in the notes to financial statements, risk factors and MD&A.

White addressed the need for input from market participants for the following proposed recommendations:

  • Recommending that companies file a “core document” or “company profile” with information that changes infrequently (needs to be reworded)
  • Amending the filing process by streamlining and simplifying disclosure requirements to reduce administrative costs
  • Researching ways to enhance the presentation and communication of information; and to use technology to address these issues

Click here for a copy of the full SEC report.

Is less disclosure more helpful or harmful to investors?

According to a recent Fortune article, the early opinion on the street is that although the disclosure requirements of the SEC may need an updated and possible streamlining, the information currently available is useful and helpful.

Although it may be true that not all investors read a filing in full, there are many that do, as the full filing provides insight on investment and voting decisions. By having more information available, investors feel that they can be more diligent in assessing risks. If nothing else, the recent financial crisis has taught investors a valuable lesson and that is to be more informed, more educated and to not discount risks.

So already we have a difference of opinion. On one hand you have the SEC looking to ‘simplify’ their disclosure process, with the possibility of reducing the amount of information necessary for companies to meet disclosure requirements. On the other hand, you have the street, which at first blush is more than happy with the amount of content and would be happy to receive even more granular details.

So where do you stand on SEC disclosures: More, less, or just right?


Understanding the True Risks of Utilizing Social Media for Financial Disclosure

October 8, 2013

By Serena Ehrlich, Director of Social & Evolving Media

Last week, Twitter announced to the world it was filing its S-1 via its own social media platform.   While a few vendors in the IR + social media space praise the recent decision by the SEC to allow public companies to disclose material news via social channels, most realize this method is far from a best practice.

What is disclosure via social networks? 

In April 2013, the SEC announced that public companies could utilize social media networks as material disclosure distribution outlets, if they first let investors know which networks they were going to use.  This announcement came with a wide range of support and backlash. Those in favor believe this decision is forward-thinking and a solid fit for the way people communicate today.  Many others believe that this decision will lead to uneven access to content and the sharing of misinformation, ultimately creating a more volatile stock price.

Why are social networks bad platforms for disclosure? 

Before we start, let me reiterate, I am obsessed with social media.  I love Twitter.  I love Facebook.  I’m a wizard at G+, and yet I strongly believe social networks are terrible platforms for disclosure as they simply do not provide immediate, broad access to the news.  Below are several of the road blocks facing this practice that should be considered by every public company before considering this step.

  • Does the news fit the platform?:  Each social network has its own personality and fulfills different end user needs and desires, most of which are not aligned with most companies’ investor profiles.  Facebook, for example, is an excellent recommendation engine.  Pinterest is an aspirational website and Twitter is a continually updating information sharing tool.  None of these sites are being utilized by the average user as legitimate investment forums.  It is important to note that while platforms like StockTwits do bring the discussion of stocks onto Twitter, it is not reflective of Twitter’s overall market use.
  • Lack of visibility of Tweets and social updates:  As noted in this infographic, many company updates are simply not seen by page friends and fans. In fact, 84% of Facebook newsfeed stories are never seen and 71% of tweets are ignored.  This lack of visibility directly affects the success of social network disclosure posts.
  • Manipulated news visibility:  Every social network has the technology and ability to change the visibility of tweets and posts.  Twitter, Facebook, and other networks are monetized by advertising.  Paid tweets, sponsored posts and trends and more increase visibility of “popular” news and take valuable visibility away from non-paid status updates and posts.
  • Potential platform volatility:  Let’s face it, social networks sometimes go offline. Whether it is for system maintenance, too much volume or a DOS attack, when you choose to disclose over a social network, you put yourself at the mercy of a network only a handful of years old.
  • The old game of telephone:  When news is shared out across social networks, people frequently include their own opinion before resharing.   This leads to the possibility of message alteration (on Twitter, these changes are frequently noted with an MT which stands for modified tweet), which could directly impact perception of both the company and the news issued.  Rumors spread quickly on social networks and once misinformation is shared, the company must focus on message correction or risk stock instability.
  • Lack of access to social networks:  In 2011, a study of corporate CIOs shows that 31% of companies did not allow access to social networks during work hours, directly limiting access to real-time breaking news.  As the New York Times noted in 2012, financial institutions continue to struggle with providing traders and analysts with access to these channels.
  • Lack of immediate access to full-text:  The other issue with social networks is that they do not allow for very much text.  This means a company must state the impact of their news in as little as 140 characters and include a link to the full text article.  This 2-step process decreases potential visibility of the full story, and delays access to the news for end users.
  • The impact of delayed access to news:  One of the big discussions this summer in relation to the investment community was the financial impact of Thomson Reuter’s product that provides elite traders access to key information milliseconds before the rest of the financial community.  This service allows traders to buy and sell before the rest of the financial community. Every second counts on Wall Street. CNBC notes that within 10 seconds, hundreds of millions of dollars in trades can be completed.  Social networks are unable to confirm equal visibility of news and tweets, making it very easy for trades to be made before the news has fully been disseminated.
  • The security issue:  While somewhat rare, every social network, every website, faces potential security attacks and risks. Even the AP’s Twitter account was recently hacked, causing  widespread sharing of a false report of a shooting at the White House.  How are consumers supposed to know if your update is legitimate or not?  How quickly can a stock price be halted if false news impacts trading?
  • By the way, who actually uses social networks?:  While many buy-side analysts praise the use of social networks as research tools for reporting (a practice we highly recommend), most social site demographics are not aligned with investor audiences. Pew Internet notes that only 16% of Americans who utilize social networks have a Twitter account while 67% use Facebook.

Did we mention that we love social networks?!  So what should you be doing if you want to socialize your news, increasing overall awareness and engagement with your organization?  Business Wire continues to recommend a mix of tools including:

  • Use broad distribution via a commercial newswire to guarantee your full-text press release is simultaneously put in front of reporters, analysts and interested online parties.
  • Include multimedia to enhance your news – analysts love multimedia, especially video from senior team members.  Not only does multimedia increase viewership and news sharing, it has been proven to both drive deeper company-to-consumer relationships and also humanizes the brand.
  • Blog about it:  One of the best uses for corporate blogs is the ability to provide additional context for corporate news.  These are perfect vehicles to showcase the “why” of your story. And blogs that answer expected media and analyst questions help reporters provide better news coverage, ensuring further approved message permeation, decreasing message confusion and stock volatility.
  • Sharing news socially is a great idea!  Once your news has been posted to your website, share it out across your social channels.  Include Tweet this links inside your release copy to make it easy for your readers to share your highlights.
  • Live tweet:  One of the best ways to use social networks to share out news is to live tweet major events or news.  Draft tweets based on key elements of your press release and tweet them out with links back to your news. Include created multimedia to drive even higher engagement and sharing.
  • Utilize video chats: Create a video version of your blog and share each video’s embed links with key reporters and analysts. Today’s news outlets crave video content, as it both engages readers and increases the time the reader spends on their website. Analysts like the opportunity to see as well as hear from senior management. And of course, just like the blog, this content continues to drive message permeation.
  • Monitor the Conversation:  This is the number one way analysts today use social media.  They use it to see what people are saying about you, your product, your reputation and company.  The best way for organizations to utilize social media for disclosure is to listen.  What are people saying about your company, what misconceptions need to be clarified, what message points are resonating and which ones are not? Through listening you can not only find where conversations are occurring about your brand, but major themes, providing you with a roadmap for future discussion points.

There is a real, legitimate place for social media tools and platforms in the news distribution process, just not for material disclosure.

What do you think? Do social media platforms meet the requirement for consistent broad disclosure? We would love to hear your thoughts below!

Have questions about the role social media plays in the news distribution process? Let us know!


Common Sense vs. Nonsense: What Thomas Paine Can Teach Us About Disclosure

April 22, 2013
by Cathy Baron Tamraz, Chairman & Chief Executive Officer, Business Wire
Cathy Baron Tamraz

Cathy Baron Tamraz, Chairman & CEO, Business Wire

Herb Greenberg, the respected CNBC market commentator who first asked whether Netflix violated Reg FD with its use of social media, subsequently put the issue into its proper perspective: It’s all about “common sense.”

Unfortunately, common sense seems to be in short supply these days, as attempts to redefine “full and fair disclosure” depreciate its value to market participants.

In a prescient post in July 2012 (http://www.cnbc.com/id/48086440), Greenberg asked whether Netflix CEO Reed Hastings side-stepped Reg FD by touting on his Facebook page that Netflix had set a new milestone in monthly viewing.

The provocative post apparently caught the eye of SEC officials; the agency filed a Wells Notice against Hastings and Netflix, indicating an inquiry into whether there was a basis to pursue the allegations.

Common-Sense-DisclosureGreenberg, in a December 2012 post, reflected on the surprising reaction of some folks to the SEC’s action. As far as Greenberg was concerned, the issue was simple.

“Bottom line: I’m all in favor of social media as a point of dissemination,” Greenberg wrote.” “They aren’t going away. But public companies and executives want to use them, and they have to play by the rules. That means, simply, issue a press release at the same time. Simple common sense, don’t you think?”

The SEC tweaked the rules recently by issuing a report on the possible use of social media tools for compliance purposes. Unfortunately, the agency’s report generated a lot of heat, but little illumination.

Thomas Paine, in talking about government and society, wrote his passionate pamphlet called “Common Sense” in 1776. Written more than 200 years ago, his words are timeless:

“There is something exceedingly ridiculous in the composition of the monarchy. It first excludes a man from the means of information, yet empowers him to act in cases where the highest judgement is required.”

Common sense dictates that full and fair disclosure means that all market participants have simultaneous, real-time access to market-moving information. Business Wire has a patented news delivery platform — “NX” — that ensures network recipients worldwide have equal, unrestricted and simultaneous access.

Common sense dictates the overriding importance of network security, and the vetting of corporate announcements to validate their source. Business Wire’s network systems are audited annually by independent management consultants, ensuring compliance with the rigorous standards of securities regulators in multiple international jurisdictions. Additionally, Business Wire has close to 200 editors — and authentication procedures — to provide credible, vetted information to the capital markets.

Common sense dictates that an audit trail exists to protect issuers in the event of a regulatory investigation. As a point of fact, the SEC itself utilizes Business Wire’s audit trail when investigating companies that have caught their attention.

Common sense dictates that the recommendations of prominent professional organizations such as The National Investor Relations Institute be factored into policy decisions. Specifically, NIRI’s “Best Practices” call for a combination of Reg-FD compliant platforms to ensure the broadest possible investor outreach.

Common sense dictates that service providers adapt the latest technologies. Business Wire’s multi-channel platform has long embraced social media (it has 61 industry Twitter feeds). In fact, Business Wire is the industry technology leader with five patents, including two for social media innovations.

Common sense tells us that information should be simultaneous and ubiquitous. Excluding anyone from access to material information is the road to chaos, leading to a possible return to the “Whisper on Wall Street.” Ironically, this is the very thing that Regulation Fair Disclosure sought to eliminate in 2000.

Clearly, there is no substitute for common sense. While it is apparently lacking in some circles, the encouraging news is that the investor relations industry has a proud history of taking a pragmatic and thoughtful approach in meeting its professional obligations, as confirmed by this recent NIRI survey.

The silver lining, as Thomas Paine and Herb Greenberg have taught us, is that common sense never goes out of style.


Social Media in the Spotlight: Business Wire CEO Cathy Baron Tamraz Talks About the SEC’S Guidance on CNBC

April 11, 2013
by Neil Hershberg, Senior Vice President, Global Media/Business Wire

Business Wire CEO Cathy Baron Tamraz is rapidly becoming the public face of full and fair disclosure.Tamraz appeared on CNBC’s “Closing Bell” Tuesday, where co-anchors Maria Bartiromo and Bill Griffeth interviewed her on the potential market implications of the SEC’s recent guidance on the use of social media for Reg FD compliance.

Video Clip:

Tamraz quickly distilled the key issues of the disclosure debate, explaining that popular social media platforms such as Twitter and Facebook — while effective in extending investor outreach — are only one component of full and fair disclosure. She added that social media complements other Reg FD-compliant channels, including a broadly disseminated news release via a legitimate wire service, posting on an IR web site, webcasts, and regulatory filings. All these elements contribute to a “Best Practices” disclosure program that equitably and inclusively serves the needs of all market participants.

She emphasized that Business Wire makes extensive use of social media tools as part of its multi-channel distribution platform, and that the company holds five technology patents, including two in social media. One patent — its “NX” news delivery platform — is key to the disclosure discussion because it ensures simultaneous, real-time access to market-moving information by all network recipients worldwide. Simultaneity and market fairness is what Reg FD is all about; Business Wire’s unique ability to meet this stringent requirement has been independently validated by patent authorities in multiple jurisdictions.

Additionally, Business Wire provides an audit trail for every release, which is a critical benefit in the event of a regulatory investigation. There also are multiple archives, including such popular databases as Factiva and Lexis/Nexis, that provide an easily accessible and reliable record of all corporate announcements.Tamraz has emerged in recent years as an outspoken advocate of Reg FD’s guiding principles: full and fair disclosure and a “level playing field.”  She has written extensively on the topic, appeared before regulatory agencies and advisory councils focusing on corporate governance issues, and is the industry’s most vocal proponent of providing all investors — institutional and individual alike — with equal and unrestricted access to price-sensitive information.

Press Release:
Business Wire Says Social Media Platforms Are Only One Component of Full and Fair Disclosure and Offers Issuers a Guide on How to Effectively Use Social Media Tools http://www.businesswire.com/news/home/20130404006180/en/Business-Wire-Social-Media-Platforms-Component-of%C2%A0Full

Blog Post:
What Can Louisville’s Kevin Ware Teach the SEC and Public Companies About Social Media?
http://blog.businesswire.com/2013/04/04/what-can-louisvilles-kevin-ware-teach-the-sec-and-public-companies-about-social-media/


What Can Louisville’s Kevin Ware Teach the SEC and Public Companies About Social Media?

April 4, 2013
by Thomas Becktold, Senior Vice President, Global Marketing

Turns out, quite a bit.  You see, within hours of his terrible injury on the basketball court, fans were flocking to Twitter to offer their support.  Unfortunately, most were initially going to a fake Twitter account and weren’t engaging with Kevin Ware at all.

Following the April 2, 2013 SEC Report of Investigation that says social media accounts fall under the guidelines of their 2008 Interpretive Guidance Report on IR sites, we have put together some tips to help public companies in their IR social media efforts.

Social media engagement should be a part of the communications mosaic, but it is not a replacement for full, fair and simultaneous distribution of news achieved through Business Wire.  Investor relations professionals appreciate that their audiences are diverse and dispersed and use a wide range of platforms and content sources to access material information.

SEC_Blog_Post_Graphic

Social Media Opportunities for Public Companies

  • Social media channels offer the ability to gather intelligence and engage in two-way conversations, and as part of a comprehensive communications mix, are quite valuable.
  • Companies should establish official IR-specific social media channels on key platforms, even if they are not ready to use them.  If the channels are not active, put a disclaimer or keep them dark.
  • For those with a solid understanding of social media and their investor audiences, regular, consistent use of the channels for both good news and bad news is key.  Just like any other disclosure platform, don’t tweet or post only the good results and skip the bad ones.  Once you commit to adding a social media channel to your communications mix, stick to it.  If you discontinue use of a channel, communicate that as well.
  • Establish and publish a clear policy on your company’s use of social media as a supplemental channel to alert investors of disclosure press releases and filings.  Cross-reference those channels on your IR site, press releases and filings.
  • Listen to conversations and track sentiment and influencers, including your company’s Twitter “Cash Tag” – tweets tagged with your ticker symbol preceded by a $.  Business Wire now offers social media sentiment analysis reports for press releases via our partnership with NUVI.  For real-time monitoring and engagement, the NUVI platform provides an easy visual representation of influencers and sentiment based on the terms you choose.

Social Media Cautions for Public Companies

  • Full and Fair Access:  According to Pew Research as reported by TechCrunch, only 16% of adult US Internet users are on Twitter.
  • Privacy: Social media channels have barriers to entry and require the user to set up accounts and agree to the terms and conditions of each channel.  Your company does not control those terms and they may be objectionable to those interested in your news.  Chances are, your own IR site, as a best-practice, does not require visitors to agree to terms and conditions to access material news.
  • Fragmentation: Where’s Waldo meets disclosure.  As an IRO, do you opt for a wide, instantaneous Business Wire distribution or solely post to Twitter or Facebook and hope people find your material information?  Ask yourself, how do your investors, potential investors and media currently access your news?  Chances are, it’s through a widely divergent set of sources.
  • Simultaneity: The fact that users must click on a link to read a full-text announcement (that will reside elsewhere) adds latency and unfairness to the disclosure process.
  • Usability: Is social media going to meet the needs of your audiences?  Is it realistic to ask your institutional investors to hit “Like” on Facebook to get the latest earnings release alongside their elementary school friend’s picture of their latest cake or new puppy?  Should you expect your retail investor to stop relying on their brokerage account to access your news because it’s no longer there and instead subscribe to your Twitter feed?
  • Security: Don’t use social media as your sole means for disclosure: Look at Kevin Ware, the Louisville basketball player and what happened on Twitter just after his recent on-court accident.  Someone set up a fake account because, yes, we know it’s that easy to do.  And, that fake account had more followers than his real account.  Imagine potential investors searching in vain for the “real Twitter account” for your company when breaking news happens?  (Or finding that the official account has been hacked, as recently happened to both Burger King and Jeep.) Want to get a “verified” account?  Good luck —  and it might not make a difference anyway, according to this recent Mashable article. The Business Wire slug ensures a seamless, secure, audited experience.
  • Reliability: Twitter has been riddled with outages as it grows – think how many times you’ve seen the Fail Whale. Business Wire operates at 99%+ uptime.   With your news widely distributed, if one site or system goes down, investors have many others to turn to.
  • Liability: Leveraging a Business Wire distribution ensures full and fair distribution.  Tweeting a release today is akin to walking across a frozen lake in late March.  Your odds of making it across are good, not great.

Want to read what journalists and others are saying about the SEC ruling?  Here are a few links – the comments sections often provide greater insight for you to consider as a communications professional:


Regulation Fair Disclosure: Once Again in Critics’ Cross Hairs

January 3, 2013

Image

The need for better and broader disclosure: social media added to Reg FD-compliant disclosure vehicles is the way forward.

By Neil Hershberg
 
If misguided regulatory reformers have their way, the passage of Reg FD will be remembered as “The Golden Age” of full and fair disclosure.  The global paradigm of investor protection and market fairness is once again under attack by detractors, who have seemingly forgotten the landmark directive’s true spirit and intent — as well as its clearly defined compliance criteria.

Reg FD has been a lightning rod for criticism since its adoption in 2000. The latest threat promises to further emasculate Reg FD, eroding the “level playing field” that the SEC sought to enshrine for all market participants.

Critics are pushing for the recognition of social media platforms, such as Facebook and Twitter, as Reg FD-compliant channels for investor communications. Clearly, regulatory disclosure was never intended to be a “friends and family” rewards program, but rather a compliance model designed to service the information needs of the entire investment community.

Netflix and the SEC

The latest disclosure debate recently boiled over when Reed Hastings, the CEO of Netflix, revealed on his Facebook page last July that viewers had downloaded one billions hours of streaming video the previous month. Netflix’s stock spiked to a six-week high following the post, rising 13 percent and increasing the company’s market value by $542 million in one day, according to news reports. 
 
While there were other mitigating factors that likely contributed to the sharp rise in share price, the steep escalation in capitalization caught the attention of SEC watchdogs.
 
According to the SEC, Hastings’ post contained material information that should have been broadly disseminated, as opposed to being selectively disclosed to his fortunate Facebook followers.  The SEC filed a Wells Notice against both Hastings and Netflix for violating Reg FD. While the agency’s staff is recommending that a civil claim is warranted, the commissioners must still decide whether to pursue the allegation.
 
Interestingly, Netflix filed an 8-K to announce the SEC action, and subsequently submitted a regulatory filing to announce that Hastings’ salary would double in 2013. Netflix obviously has developed a new appreciation for recognized disclosure tools in the wake of the SEC reprimand.  
 
The battle lines over the use of social media have been drawn; Hastings has become the “poster boy” of social media supporters who are aggressively lobbying the SEC to revisit Reg FD and adopt new flexibility toward the use of social media.
 
A close look at the facts, however, confirms that enabling issuers to rely exclusively on social media to reach investors would be a major step backwards, and threatens to reverse the enormous progress made in the dozen years since Reg FD was enacted.
 
According to Compliance Week, Hastings’ post was not on Netflix’s corporate Facebook page, but was published on one of his three personal Facebook accounts. Clearly, investors should not have to guess whether material information is hiding behind Door #1, Door #2, or Door #3.
 
Reg FD is remarkably clear on this point: all investors have an equal right to simultaneous, real-time access to market-moving information. They should not have to play the Netflix equivalent of “Three-Card Monte” to get access to corporate developments that may influence their investment decisions.
 
The Dilemma Facing Journalists & Analysts
 
Liz Hester, in an article for “Talking Biz News” (a site that is popular among business journalists), described the dilemma facing journalists and analysts in the event that social media supplants closely monitored disclosure platforms:
 
“This means that as a business journalist you’d better be Facebook friends, a Twitter follower, Instagram tracker, blog reader and somehow connected through every social media to the people you cover,” Hester wrote. “This means your feeds will have to cover everyone from the CEO to the marketing officer to the press person. Good luck weeding through all the baby photos for real news.”
 
Supporters of social media have seized the opportunity to attack the SEC’s stance on the use of online platforms for disclosure compliance.
 
“The SEC wants CEOS to use press releases, investor conference calls or formal SEC filings to communicate,” wrote Larry Popelka, a Bloomberg Businessweek contributor in a column that appeared on SFGate.com. “The problem with these communications is that they are cold, formal, and often don’t provide meaningful insights into company leaders’ thinking. Individuals and organizations that use social media have discovered that it is a much richer, more effective way to communicate.”
 
Popelka’s arguments are deeply flawed. How are messages that are limited to 140 characters, for example, an improvement in terms of providing “meaningful insights into company’s leaders thinking?”  More importantly, the purpose of disclosure has obviously been lost on Popelka.  Disclosure was never meant to be “warm and fuzzy.” Rather, the objective has always been to be “full and fair.” And Reg FD — in its current incarnation — does an exemplary job in accomplishing this goal.  
 
A Unified Effort to Bolster Disclosure
 
The warring factions should put their differences aside and join forces in a united effort to bolster disclosure. There is an underlying commonality of interests that everyone can agree to: the need for better and broader disclosure. 
 
The reality is that this should not be an either/or proposition. Social media is here to stay, and its importance is growing daily. Social media should be an integral part of virtually every investor communications program, in addition to any Reg FD-compliant disclosure vehicle. Using social media tools to supplement other distribution channels is a strategy that has near-universal appeal.
 
Herb Greenberg, the respected CNBC market commentator who first broached the issue of whether Netflix violated Reg FD last July, puts the issue into its proper perspective:
 
“Posting material information on a CEO’s personal social media page simply isn’t fair disclosure — no matter how many people follow it,” Greenberg concluded. “Bottom line: I’m all in favor of social media as a point of dissemination. They aren’t going away. But public companies and executives want to use them, and they have to play by the rules. That means, simply, issue a press release at the same time. Simple common sense, don’t you think?”

Why the Deck is Stacked Against Retail Investors

February 3, 2011
by Neil Hershberg, Senior Vice President, Global Media
Neil Hershberg

Neil Hershberg, SVP - Global Media

The classic Cole Porter musical, “Anything Goes,” is returning to Broadway this spring.

Retail investors won’t have to wait that long. In practice, “Anything Goes” has become the unofficial mantra of Wall Street, the Digital Age’s equivalent of ‘The Wild West” when it comes to disclosure.

Unfortunately for individual investors, who invariably get the short end of the stick, the folks in a position to end today’s information free-for-all have yet to take action.

At the risk of sounding like the Cassandra of capitalism, here’s why retail investors are swimming upstream:

1. Reg FD’s “level playing field” has become the regulatory equivalent of an ecological disaster area; it is eroding faster than many storm-swept East Coast beaches.

Mega-cap companies with huge investor followings have, for reasons best known to themselves, opted for micro-disclosure, dispensing with broadly disseminated news releases in favor of standalone web postings or similar truncated practices.

Rather than providing simultaneous, real-time information access to all interested investors, these best-practice contrarians have essentially decided to ladle access on a sequential basis to anxious  investors clamoring for corporate updates.

Over the past few decades, we’ve regressed from “trickle down economics” to “trickle down disclosure.”  Unfortunately, retail investors are the ones getting hosed.

Ironically, technology trend-setters are among the most flagrant abusers of acknowledged best-practice disclosure practices. These industry leaders should know better than anyone the inherent technical limitations of the Internet, and why the web’s architecture makes it impossible to meet the complex challenge of simultaneity.

2. Retail investors also are unknowingly getting eaten alive by spiders; these automated creepy crawlers have become a hidden epidemic.

While Bloomberg recently generated headlines when it published Disney and NetApps earnings results in advance of their official release, the real concern for retail investors should be the stealth spidering tactics of traders deliberately seeking to stay under the radar.

The spiders unleashed by Bloomberg and Selerity likely have plenty of company. In all probability, armies of incognito spiders are clandestinely retrieving troves of actionable, non-public data for their trading masters.

Even if these spiders fail to uncover non-public material information, their very use provides an unfair edge if publicly traded companies do not broadly disseminate their news via a service such as Business Wire.

The reason is that spiders are faster than the RSS readers that retail investors rely on for news alerts when disclosure is limited to a standalone web posting. Whereas Business Wire distributes market-moving news simultaneously and in real-time to financial information systems, portals, and media platforms worldwide, standalone web postings create a feeding frenzy for these rapacious spiders.

Retail investors have a legitimate reason to be suffering from arachnophobia; they are at a distinct disadvantage to market players that control these powerful technology termites.

3. There is a well-known saying that in life, “timing is everything.” That is certainly the case on Wall Street, where latency and milliseconds rule the day.

Winning on Wall Street is largely contingent on the ability to access and act on information faster than anyone else.

Institutional investors clearly have the necessary resources and technology at their disposal to triumph in today’s trading environment.

Notice-and-access and web disclosure disproportionately favor the professional investor, who can read – and react (perhaps even robotically) – far more quickly than the average retail investor.

The trading activity following Netflix’s recent web posting of its earnings (January 26 at 4:05 pm/ET) illustrates the high stakes involved.

More than one-third of Netflix’s total share volume for the day, or just over three million shares, traded after Netflix posted its earnings.

In after hours trading, Netflix’s shares were up $19.16 (10.47 percent).

Although individual investors now have the opportunity to trade in the after-hours market, they are being steamrolled by institutional traders, who clearly have the capability to react with more immediacy.

Retail investors are forced to play a bad hand. A recent blog post by Jack Campbell at 24/7 Wall Street, “Ten Ways Wall Street Crushes Retail Investors,” elaborates on many of these same themes: http://247wallst.com/2011/01/26/ten-ways-wall-street-crushes-retail-investors/

The common denominator linking all these examples is access to material information.

Regulation Fair Disclosure, in its original iteration, is clear on this point: all investors should have equal access to information at the same time.

The answer to the disclosure dilemma is obvious: the integrity of Regulation Fair Disclosure must be restored if retail investors are to be equal market participants.

Simultaneous, real-time access to disclosure news is the only solution that will put an end to the emerging two-tier access system that is slowly taking root.

It’s time for retail investors to get the fair shake they deserve.


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