October 26, 2010

FINRA Revises Policy on Free Writing Prospectuses

Last week, FINRA issued Regulatory Notice 10-52 relating to free-writing prospectuses – which partially revises a prior ’06 NASD interpretation – to require that FWPs distributed by a broker-dealer in a manner reasonably designed to lead to a “broad unrestricted dissemination” be subject to FINRA’s rules regulating broker-dealer communications with investors (NASD Rules 2210 and 2211). The prior interpretation had excluded FWPs from those rules. It appears that this change in interpretation is immediate.

FINRA states that it is following guidance provided by the SEC as to the scope of the term “broad unrestricted dissemination” – and that the term would include posting FWPs on an unrestricted website or releasing them to the media; whereas it would not include posting FWPs on a restricted website or sending the FWP directly to the broker-dealer’s customers (regardless of the number of customers). The Notice sets forth an example in Endnote 6 that broker-dealers would be required to file a FWP for a public direct participation program within 10 business days of first use.

Note that – as set forth in Endnote 7 to the Notice – FINRA is not withdrawing prior interpretations from ’06 regarding:

– FWPs are exempt from the provisions of NASD Rules 2210 and 2211, as the case may be, if the FWP is not distributed in a manner reasonably designed to lead to broad unrestricted dissemination; and

– FWPs are not subject to the filing requirements of FINRA Rule 5110 or NASD Rule 2720 (to be renumbered FINRA Rule 5121).

There are some funny ones among these New Yorker cartoons, including the one about three financial experts and a jerk. And here are the WaPo’s top quotes from Rocky & Bullwinkle – the creator passed away last week.

Corp Fin Director Meredith Cross Speaks on the Division’s Rulemaking Schedule

On Friday, Corp Fin Director Meredith Cross delivered this speech, explaining the upcoming – and hectic – rulemaking schedule for the Division of Corporation Finance. The timeline is not any different than what was previously spelled out – but it does help to get some gloss on this important topic. It’s Meredith’s first posted speech since she took office.

Dissecting the Modern Poison Pill

We have posted the transcript from the recent webcast: “Dissecting the Modern Poison Pill.”

– Broc Romanek