"ii. Comments on the Safe Harbor
Commenters supported the proposed safe harbor and suggested certain expansions
and clarifications.151 Commenters wanted us to clarify that information that was directed
to customers, suppliers, etc., would be covered by the safe harbor even if the information
became available to other persons, including investors or potential investors.152 As we
discuss above, the Rule is aimed at assuring that the communication is intended for use
by an audience that is other than an investor audience, not at ensuring that the
communication is not received by or available to an investor or potential investor. We
have modified the Rule to clarify this point. For example, a widely disseminated
communication (such as a press release) intended for use by a non-investor audience and
150 These issuers will still be able to rely on our interpretive positions for the release
of factual business information. See note 122. In addition, these issuers may still
be able to rely on Securities Act Rules 134 and 135 and new Securities Act Rules
163A and 164.
151 See, e.g., letters from ABA; NYCBA; NYSBA; and Reuters.
152 See, e.g., letters from ABA and NYSBA.
71
otherwise meeting the conditions of the safe harbor will not lose protection if it is
available to or received by investors or potential investors."
From:
http://www.sec.gov/rules/final/33-8591.pdf
This seems to indicate that information can still be released, even if it is received by investors or potential investors, so long as it is directed to customers.
And I would go so far as to say that not releasing information about the product could also be considered a liability, since we can see that there is interest. After all, Tesla did get some pretty hefty funding to actually build the Model S production line, so someone wondering and questioning what is happening is consistent with the need for more information, not less.
I know it might be a slippery slope, but the above rule seems to indicate that if the information is directed towards customers, there is a little more leeway, even if that information ends up in the hands of potential investors. Is this rule in effect?
Just wondering.