Key takeaways 

• As recently reported in the press, Netflix, Inc. and its CEO received “Wells Notices” from the Staff of the SEC on December 5 indicating the Staff’s intent to recommend the SEC bring suit against the company and its CEO for violations of Regulation FD stemming from disclosure posted by the CEO to his Facebook page in July.
• Regulation FD requires that whenever an issuer, or any person acting on its behalf, discloses any material nonpublic information regarding that issuer or its securities to any member of a specified group of outsiders, the issuer must make “public disclosure” of that information. In 2008, the SEC issued interpretive guidance that, among other things, provided guidance on when information posted on a company website would be considered “public” for purposes of satisfying Regulation FD.
• Issuers should review and update their internal Regulation FD policies to address the use of social media and other non-traditional means of communication and ensure that company sponsored communications disseminated through these channels fall under the oversight of their disclosure committees.