U.S. District Judge Paul Englemayer's recent 129-page opus decision on the parties' cross-motions for summary judgment in SEC v AT&T and Ors., 21 Civ. 1951 (S.D.N.Y. Sept. 8, 2022), provides rare and comprehensive guidance for issuers on each element of Regulation Fair Disclosure (Reg FD), setting out enforcement traps unwary public companies face when communicating material non-public information with select individuals or entities.

Reg FD—which is intended to prevent issuers from "gain[ing] or maintain[ing] favor with particular analysts or investors," Final Rule: Selective Disclosure and Insider Trading, SEC Release No. 7881, 2000 WL 1201556, at *2 (Aug. 15, 2000)—was first enacted in October 2000, but has been rarely litigated over the ensuing 22 years.

The SEC has brought less than two dozen actions to enforce Reg FD in the two decades since it was enacted, and only one case—SEC v. Siebel Sys., Inc., 384 F. Supp. 2d 694 (S.D.N.Y. 2005)—led to adversarial litigation. As enacted, Reg FD states that when a publicly-traded company or issuer of stock intentionally discloses any material nonpublic information about itself or its securities to a limited group of individuals, the issuer must also simultaneously disclose the same information to the public.