Regulation FD — The Disclosure Rule Every Public Company Executive Must Understand

Regulation FD (Fair Disclosure) was adopted by the SEC in 2000 to eliminate the practice of companies providing material information to selected analysts or institutional investors before disclosing it publicly. For newly public companies, Reg FD violations are among the most common and most avoidable disclosure mistakes — typically not from intentional wrongdoing, but from management teams that don't fully understand what constitutes selective disclosure.

What Regulation FD Requires

Under Regulation FD, when a public company intentionally discloses material non-public information to covered persons, it must simultaneously make that information publicly available. If the disclosure is unintentional, the company must promptly (within 24 hours, or before the next trading day, whichever is sooner) make a public disclosure.

The rule applies to disclosures made to:

• Broker-dealers and their associated persons
• Investment advisers and their associated persons
• Investment companies
• Holders of the company's securities, in circumstances where it is reasonably foreseeable that the holder will trade on the information

The rule does NOT apply to disclosures to: the media (journalists), persons who have agreed to keep the information confidential (such as parties in M&A discussions under NDA), or regulatory and governmental authorities.

What Counts as Material Non-Public Information

Information is "material" if there is a substantial likelihood that a reasonable investor would consider it important in making an investment decision, or if it would significantly alter the total mix of available information. Common categories of material information:

• Earnings results or guidance before public announcement
• Merger, acquisition, or divestiture discussions
• Changes in earnings guidance or outlook
• Significant new contracts, customers, or product launches
• Regulatory approvals or disapprovals (particularly in life sciences)
• Management changes (CEO, CFO departures or appointments)
• Financing transactions or capital structure changes
• Legal proceedings or government investigations

How Newly Public Companies Commonly Violate Reg FD

Based on SEC enforcement patterns and publicly available cases, the most common scenarios are:

• Analyst one-on-one meetings with "extra color": A CFO or IR officer provides qualitative commentary in a private analyst meeting that goes beyond what was disclosed in the last earnings release — and includes information about current-quarter trends. If that information is material, it is a Reg FD violation.
• Conference presentations with new information: A CEO presentation at an investor conference includes forward-looking statements about current-quarter performance or a new strategic initiative that was not previously disclosed.
• Social media posts: An executive posts to LinkedIn or X (Twitter) with commentary on the business that includes material information. The SEC confirmed in 2013 that Regulation FD applies to social media exactly as it applies to other communication channels.
• Private earnings guidance updates: An IR officer calls a few analysts before the earnings release to "prepare" them for the results, providing information that has not been publicly disclosed.

Real Enforcement Actions — From SEC.gov

The following enforcement actions are documented on the SEC's website and illustrate how Reg FD violations occur in practice. We link directly to the SEC's own releases:

How to Stay Compliant

The practical compliance framework most IR teams and securities counsel recommend:

• Implement a disclosure policy before the IPO — a written policy identifying who can speak to investors, what can be said, and the process for reviewing materials before distribution.
• All investor-facing materials should be reviewed by IR counsel and the IR firm before distribution, especially any forward-looking commentary.
• File an 8-K immediately if an unintentional selective disclosure has occurred. The remedy is prompt public disclosure — not hoping no one noticed.
• Use the earnings call and written earnings release as the primary vehicle for any new information. Analyst one-on-ones after the call should stay within the bounds of publicly disclosed information.
• Social media posts by any officer or director that mention the company's business should be reviewed before posting.

Real Enforcement Cases

The SEC enforces Regulation FD actively. Two landmark cases that every CFO and IR officer should know:

• AT&T (2022): The SEC charged AT&T with Reg FD violations for having investor relations executives privately contact analysts and share revenue and revenue-per-phone data that had not been publicly disclosed. AT&T settled for $6.25 million without admitting wrongdoing. The case demonstrated that the SEC views calls between IR personnel and analysts — not just executive calls — as subject to Reg FD.
• DraftKings (2024): The SEC charged DraftKings with Reg FD violations for disclosing material non-public information about its revenue trajectory to select analysts during private meetings before the earnings release. DraftKings settled for $200,000. The case reinforced that "soft guidance" given privately — describing business trends without providing specific numbers — can still constitute material selective disclosure.

Both cases confirm that Reg FD applies to IR staff communications, not just C-suite communications, and that describing business trends or directional commentary about metrics can be "material" even without specific numbers.

The Safe Harbor — Unintentional Disclosure

Regulation FD provides a safe harbor for unintentional selective disclosure. If material non-public information is inadvertently disclosed to a covered person, the company must make public disclosure "promptly" — defined as the earlier of:

• 24 hours after the senior official became aware of the disclosure
• The beginning of the next day's trading session (if the 24-hour period ends before market open)

This safe harbor is limited: the disclosure must genuinely be unintentional, and the company must take prompt corrective action. A company that intentionally discloses MNPI to a single analyst and then issues a press release days later has not complied with Reg FD — the corrective disclosure must be immediate.

Social Media and Reg FD

In 2013, the SEC issued guidance confirming that social media posts by executives can satisfy the public disclosure requirement under Reg FD — but only if investors have been put on notice that the company uses that channel for material disclosures. The SEC's guidance cited the Netflix/Reed Hastings Facebook post case: Hastings posted about Netflix streaming hours records on his personal Facebook page without first disclosing the information in an SEC filing or press release. The SEC concluded this was a Reg FD violation because investors had not been put on notice that the CEO's Facebook was a disclosure channel.

Post-2013, companies that use executive social media for material disclosures must: (1) file an 8-K identifying the social media accounts used for material disclosures, and (2) consistently use those accounts so investors know to monitor them. Most companies still use traditional press release and 8-K channels for material disclosures, using social media only for less material business updates.

Investor Conference Appearances

When management presents at an investor conference, Reg FD requires that material information disclosed at the conference be made publicly available. The standard approach:

• If the conference is webcast publicly, the webcast itself constitutes public disclosure — file the slide deck as an exhibit to a Form 8-K filed before or simultaneously with the presentation
• If the conference is not publicly webcast, the company must: (1) provide advance public notice of the presentation and make the slides available on the IR website, (2) file the slides as a Form 8-K exhibit, or (3) limit the presentation to information already publicly disclosed
• One-on-one investor meetings at conferences (which are private by definition) must be limited to publicly available information — any material new information shared in a one-on-one triggers the Reg FD disclosure obligation

Regulation FD Violations — Enforcement Cases

Elon Musk / Tesla — "Funding Secured" Tweet, $20 Million Fine (2018)

In August 2018, Elon Musk tweeted "Am considering taking Tesla private at $420. Funding secured." Tesla's stock immediately surged approximately 11% on the tweet, which was interpreted by the market as a factual statement that a going-private transaction was imminent at a specific price. The SEC investigated and concluded that Musk had not, in fact, secured funding for a going-private transaction at the time of the tweet. The SEC charged Musk and Tesla with securities fraud. Both settled, each paying $20 million in penalties, with Musk agreeing to step down as Tesla's chairman. The settlement also required that Musk's communications about Tesla's business be pre-approved by a securities lawyer before posting — a condition that Musk subsequently litigated and eventually had modified. The case established that social media posts by CEOs about material company developments constitute public communications subject to the same securities law standards as press releases and earnings calls.

Netflix / Reed Hastings — Facebook Post Triggers SEC Guidance (2012)

In July 2012, Netflix CEO Reed Hastings posted on his personal Facebook page that Netflix had streamed one billion hours of content in a single month — a record milestone that had not been previously disclosed. Netflix's stock rose approximately 6% following the post. The SEC investigated whether the Facebook post constituted a selective disclosure in violation of Regulation FD, given that the information was material and had been shared on a social media platform rather than through a press release or Form 8-K. The SEC ultimately did not bring an enforcement action, but instead used the case to issue its 2013 interpretive release on social media disclosure — the guidance that established when social media can be used for Reg FD-compliant disclosure. The key requirement: the company must have previously notified investors that it uses specific social media channels for material disclosures. Hastings' Facebook page had not been so designated.

Siebel Systems — Private Dinner Violates Reg FD (2005)

The SEC charged Siebel Systems with violating Regulation FD for statements made by CEO Tom Siebel at a private investment conference dinner in 2004. During the dinner, Siebel described the company's business pipeline as "incredibly good" and noted that business activity had "picked up considerably" — statements that were more positive than the company's most recent public disclosures. After Siebel's comments became known, the stock rose on the following trading day. The SEC found that the dinner comments constituted a selective disclosure of material nonpublic information and imposed a $250,000 civil penalty. The Siebel case established that Regulation FD applies in casual social settings — a dinner conversation with sophisticated investors is not exempt from the selective disclosure prohibition simply because it occurs in an informal context.