THE BANK OF NEW YORK
ONE WALL STREET
NEW YORK, NEW YORK 10286
January 19, 2000
Jonathan G. Katz, Secretary
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
Re: File No. S7-31-99
Dear Sir:
With respect to proposed Regulation FD, I offer the following comments:
The definition of a "person acting on behalf of an issuer" (in proposed Rule 101(c)) should be limited to "senior officials" (as defined in proposed Rule 101(d)(2)) of an issuer. Such persons are more likely to be aware of their duties with respect to disclosure of material information. Using the broader definition of "any officer" will create an unmanageable situation in large organizations where hundreds or thousands of employees have an officer's title.
Rule 100(b) should also specifically exempt disclosures made to governmental regulatory authorities having jurisdiction over the issuer and to commercial bankers. Issuers frequently disclose material inside information to bankers in securing credit facilities.
The term "simultaneous" should be defined to mean transmitted to the SEC or released as a press release at the conclusion of the analysts' meeting. This is to take into account the delay between the time information is transmitted to the SEC via EDGAR and the time it is actually accepted. It is also to encourage analysts to attend meetings. If information were required to be filed as soon as it is released at the analysts' meeting, it would put the analysts physically present at the meeting at a disadvantage because the disclosed information would be available to the market while the analysts were attending the meeting.
Either the rule or instructions to the rule should specifically state that only material information need be disseminated, not the entire contents of the presentation. Most presentations to analysts consist of slide shows followed by a question and answer period. Rather than require the filing of each slide the issuer should be allowed to file a summary which would include only the material information.
The proposal suggests that public disclosure could be made "through any other method of disclosure that is reasonably designed to provide broad public access...." Rule 101(e) should specifically permit issuers to comply with the public disclosure requirements of the rule by allowing the press and public to listen to analysts' meetings. If an issuer elects to allow "listen only" access, it should not be required to file an 8-K or issue a press release even if non-intentional disclosures are made, since the disclosures are being made in a forum open to the press and public.
With respect to the proposed requirement that an issuer "must provide notice of the disclosure in a form that is reasonably available to investors" the regulation or instructions should provide guidance as to what form of notice would be sufficient. A posting on the issuer's website should suffice.
Sincerely,
Paul A. Immerman
Senior Counsel