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When World Views Collide: Social Media And the SEC

Yesterday the U.S. Securities & Exchange Commission did something routine. It issued a so-called “Wells-notice” against a company, charging the firm preliminarily with releasing confidential financial information to a select portion of the market, instead of publicly to all investors as required by Reg FD (“fair disclosure”). What is remarkable, and potentially troubling, is that the basis for the charge was a short social media message by Netflix CEO Reed Hastings, reposted on the company’s public Facebook page.

As Law360 explained:

Netflix Inc. and its CEO Reed Hastings could face action by the SEC over Hastings’ July post revealing that Netflix members had watched more than one billion hours that month, the online video service said in a regulatory filing Thursday. Netflix and Hastings received a Wells notice on Wednesday that said the company could face either a cease-and-desist or civil injunctive suit for fair-disclosure violations allegedly prompted by the posting on the social networking site, according to an SEC filing by Netflix.

The juxaposition of a good-intentioned securities regulation and the disruptive impact of new technology could not be clearer. In his post, Hastings congratulated the Netflix team for a job well done in early July, noting the one billion hours of video delivered to subscribers the previous month. The message was just 43 words. In the usual social media fashion, the post was forwarded by his followers. Bloggers picked up on it. Media reports cited it.

So what’s the deal? Technically, Netflix had not filed an “8K” update with that data at the SEC nor issued a traditional press release. But the company had revealed the 1B streaming hours in its public blog well before the CEO’s Facebook post. And in 2008, the SEC became the first federal agency to recognize the growing communications functions of blogs by issuing landmark guidance saying that corporate use of blogs for release of material financial information would satisfy Reg FD.

Reed Hastings Facebook page

In this context, the action against Hastings seems to make little sense. Even if the prior blog post had not disclosed the 1B figure adequately, Hastings’ post was open to more than 200,000 followers of his Facebook page, could be “subscribed” by anyone (“friends” or not) and was widely and immediately disseminated, both in social and traditional media. Had Hastings done this via a Twitter DM (direct message) or a private Facebook message to one or more individual friends, that would be completely different. But his post was public and thoroughly publicized.

That’s the precise purpose of Reg FD. But the SEC’s Wells notice illustrates that even government agencies that “get it” technically are often trapped in outmoded world views. It’s one thing for a public company CEO to post messages about financial performance on financial chat rooms and lists, under a pseudonym, to pump up trading volume artificially. It’s quite another for bureaucrats to decide that unless one uses the obsolescent technology of the past, public disclosures are inadequate. Would the SEC also suggest that a webinar, rather than telephonic conference call, is insufficient under Reg FD when announcing earnings guidance because not all investors have broadband Web access? That is hardly a sensible result.

We’ve written a lot in this blog about social media policies and how to reduce enterprise legal exposure. The irony of the Netflix case is that a company and executive who seem to have had a valid policy and followed the government’s own guidelines for use of social media has been targeted in a possible enforcement action nonetheless. That raises the spectre, which numerous commentators noted in connection with more a recent SEC alert on social media usage by investment advisors, that vague agency guidelines may lead to policy making by criminal complaint, rather than rules of general applicability. If that is the case with regard to blogs and Facebook as mechanisms for Reg FD compliant disclosures, there’s an equally great risk that these new modes of communication and interaction will be rendered impotent for corporate purposes due to the unknown scope of potential SEC exposure. That’s a bad result which everyone should hope we do not reach.


Note:
 Originally written for and reposted with permission of my law firm’s Information Intersection blog.

 

Show Me the Money, Er Data

The week before last I participated in a conference on mobile payment technologies. I expected to find out more about Square and other startups that have begun to revolutionize credit card acceptance by solo businesses like food trucks. What I learned instead is that this nascent industry is way bigger than the emerging near-field communications (NFC) protocol Apple unexpectedly did not include in its new iPhone 5. More surprisingly, it seems the biggest attraction for inventors and investors isn’t the payment transactions themselves at all.

Some take-aways:

  1. A bunch of different technologies are competing at the standards/platform level for mobile payment processing. These include EMV, Isis and TSM, as well as NFC. A major driver in adoption is that new ventures are cutting deals with point-of-sale (POS) equipment vendors to integrate their protocols into the next software updates for these ubiquitous checkout devices. The biggest barrier to adoption is security and PCI compliance.
  2. Many of the largest U.S. retailers (7-Eleven, Walmart, Sears, Best Buy, etc.) have teamed up in a joint venture called MCX, which has yet to decide on a common approach to use of smartphones as payment devices. By virtue of their ubiquity, the MCX players may have the scale to make their selection of mobile payment technology an inflection point in this transformation.
  3. The advantage of mobile payments to retailers is not simply allowing consumers a convenient way to make purchases. Rather, it is the Holy Grail of demographic, time and location information allowing Location Based Marketing (LBM) in the “last three feet.” By capturing GPS-enabled location data, using wireless geofencing to engage in push/pull marketing interactions — think shopkick and the like (disclaimer: shopkick has been a client of mine) — and mining that data, mobile payment companies will know more about consumer preferences and behavior than SKU-level retailers or the major credit card processors like Visa and MasterCard.

This presents some interesting questions from a business and social perspective. Will and should the same liability approach used for traditional credit cards, quite protective of the consumer, apply where the credit card is essentially integrated into a smartphone? How will mobile POS (MPOS) technologies change the retail experience, for instance use of swipeable tablets by sales clerks for “line-busting” at peak sales hours? NFCWill consumers be more comfortable with non-persistent technologies that utilize one-off QR codes for payment authentication than the always on NFC payment “wallet” backed by Google? Given the shambles of our national financial regulatory system in the U.S. post-2008, which of the slew of federal agencies, from the Federal Reserve to the much-maligned CFPB, will have jurisdiction to regulate this new market, and what sort of regulation is appropriate?

Several months ago I asked, only partially in jest, whether technology had finally made currency irrelevant. Mobile payment technologies are only in their infancy in America, which lags well behind Japan and the EU. But in light of the scale of the U.S. economy, what the markets do here can have a profound effect on financial practices worldwide. The problem is that because the American approach to data privacy and ownership — where the manufacturer or merchant owns the transactional records — is so different, the driver of MPOS innovation here may not translate well abroad. Jerry Maguire’s catch phrase must be refined a bit, because mobile payment innovation in the U.S. wants to be shown the data, not the money.

Note:  Originally prepared for and reposted with permission of the Disruptive Competition Project.

Disco Project

 

 

Been There, Done That

Alright, so more than 80% of Silicon Valley's 150 largest publicly traded companies have employees holding underwater options. Everybody's Underwater In Silicon Valley [AlleyInsider.com]. It's happened before, just eight short years ago (2000-03), and that did not deter innovation or investment. Markets are cyclical and sometimes even good companies, especially before positive EBIDTA, cannot maintain market valuations. Nothing unusual about the same thing happening to public companies when panic sets into the equity markets. Stick it out, guys; you've come a long way already.