PALO ALTO, Calif. (CNN/Money) -
Leave it to the hapless Securities and Exchange Commission to bungle even its own momentous announcements.
In case you missed it, the SEC chose last Monday to announce its first enforcement actions ever related to the vaunted Regulation FD, just as most investors were thinking about the kind of turkeys you eat, rather than the kind who selectively disclose information to favored investors.
To review, the agency reprimanded four publicly traded companies it investigated for violating two-year-old Reg FD, which stands for "fair disclosure."
Two companies, Raytheon and Secure Computing, agreed not to misbehave anymore and were let off easy. Siebel Systems agreed to pay $250,000, which amounts to a wrist slapping. A fourth company, telecom equipment giant Motorola, was effectively called into the principal's office, received a good talking-to, and then was told to go back to class.
Each of the companies stood accused of selectively disclosing to privileged investors market-moving information that should have been discussed more broadly, according to the SEC.
Reg FD was meant to cut out this activity, the famous wink-wink/nudge-nudge of the investment world, whereby public companies subtly make sure that "the Street" knows what to expect from them. Those kinds of shenanigans produced a climate in which big investors got the early word while little investors paid the price.
The problem is that not only did the SEC choose the wrong time to announce the fruits of its police work, but the actions themselves are totally unimpressive.
Just what does a company have to do...
News reports of interviews with SEC officials reveal that Secure Computing, for example, inadvertently told some investors about a new product and then were slow to get the news out publicly.
Raytheon blatantly "guided down" the earnings estimates of several analysts through a series of private phone calls and at least one e-mail. It doesn't take a lawyer to determine that these were exactly the kind of actions Reg FD was meant to curtail. And yet, the SEC failed to fine Secure or Raytheon.
In the case of Motorola, it also gave what CFOs like to call "offline" guidance to analysts, but seeing as it did so under the advice of its attorney, the SEC saw fit merely to issue Motorola a warning not to do it again.
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The strangest case, however, is Siebel, whose CEO told a group of Goldman Sachs clients a year ago he was more "optimistic" than he'd previously been. Had the executive's comments been Webcast, all would have been okay.
Never mind that it's tough to analyze what "optimistic" means and therefore open to debate whether that information was material. (By the way, the optimism was misplaced.)
By fining Siebel, the SEC seems to be saying that executives shouldn't even muse about topics unless the world is listening. More helpful would be strict statements on materiality -- and not just a definition that says if the stock falls or goes up, then the comment was material.
Despite the bellyaching, Reg FD is working, in part because it's got some CEOs scared to make out-of-school comments. But if the SEC keeps publicizing its actions on slow news weeks and letting offenders off with light punishments, sooner rather than later the selective disclosers will be back.
Adam Lashinsky is a senior writer for Fortune magazine. Send e-mail to Adam at lashinskysbottomline@yahoo.com.
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