October 13, 2014
(Editor’s Note: This post is an excerpt from an article appearing in Practitioner Insights on WestlawNext)
In light of the rapid growth of social media platforms, companies will likely need to revisit disclosures of potentially material non-public company information through social media. Although these disclosures have been limited to Twitter and Facebook in the past, on Oct. 8, Icahn Enterprises LP filed a Form 8-K disclosing that Carl Icahn will expand his social media use to disclose potentially material non-public information via his Tumblr account.
Last year, the Securities and Exchange Commission issued guidelines as to how public companies should utilize social media to disseminate potentially material non-public information. In response, several prominent CEOs and activist shareholders disclosed their intent to utilize Twitter and Facebook to disclose such information to the public.
When the SEC released its social media guidance in April 2013, the agency noted that “providing appropriate notice to investors of the specific channels a company will use for the dissemination of material, nonpublic information is a sensible and expedient solution.”
In response to the SEC’s guidance, in August 2013, Icahn Enterprises disclosed its social media policy, noting:
- Our Chairman, Carl C. Icahn, intends to use Twitter from time to time to communicate with the public about our company and other issues. Mr. Icahn’s Twitter handle is @Carl_C_Icahn. It is possible that the information that Mr. Icahn posts on Twitter … could be deemed to be material information.
Shortly thereafter, the company also disclosed that Icahn could also communicate such information through his Facebook account.
Expanding use to Tumblr, Facebook
In addition to Twitter and Facebook, Icahn Enterprises disclosed:
- Our Chairman, Carl C. Icahn, intends to use Tumblr, as well as Facebook, Twitter and the web site www.shareholderssquaretable.com (and communications to its members), from time to time to communicate with the public about our company and other issues.