TheCorporateCounsel.net

Now’s a good time to check in on your process for providing advance notice to your exchange of the public release of the material information. As described in this Loeb & Loeb Quick Takes blog, Nasdaq recently added FAQ Number 1864 containing guidance on completing the electronic disclosure form to provide the required advance notice to Nasdaq’s MarketWatch Department when material non-public information is being announced. The form requires that users select one or more “news categories” that the announcement fits into, and the FAQ provides examples to clarify which categories should be selected in various circumstances. Many are self-evident, but here are some that were not so clear:

– Non-reliance on previously issued financial results should be identified as “Earnings/Quarterly or Annual Reports”
– Events involving milestone payments, material collaborations and/or partnerships should be identified as “FDA-Related/Clinical Trials/Study Results”
– Regaining compliance with Nasdaq’s listing requirements should be identified as “Listing Deficiency or Compliance Notices”

There is also the option to select “Other” for anything that doesn’t fit the listed categories, and I likely would have done that for some of these. While selecting the wrong category may not be particularly consequential, for Nasdaq companies this might be a good excuse to check in with the person or people responsible for submitting your MarketWatch notices to make sure they know the types of announcements that require 10-minute prior notice per IM-5250-1 and that they are indeed providing it in those circumstances. The expansive list is sometimes surprising to the folks responsible, and the process may run like clockwork for earnings releases, but not always for other 8-K events.

– Meredith Ervine