Guy P. Lander, Chair of Carter Ledyard’s Securities practice, writes for Insights: Corporate & Securities Law Advisor.
This article is authored by a group effort: Andrew Beck of Torys; Alyssa Caples of Cravath; Peter Castellon of Proskauer; Dorothee Fischer-Appelt of Greenberg Traurig; Robert Grauman of Fresenius; Peter Halasz of Schulte Roth; Guy Lander of Carter Ledyard; Rob Lando of Osler; Jim McDonald of Skadden; Prabhat Mehta of Sidley; Ash Qureshi of Fried Frank; Ettore Santucci of Goodwin; and Evan Simpson of Sullivan & Cromwell.
The SEC last issued guidance to foreign private issuers on the use of the Internet in 1998 (the 1998 Guidance). The 1998 Guidance discusses examples of measures that would be adequate to avoid Internet based activities from being considered to take place “in the United States,” providing different examples in the context of both US and foreign entities.
In the more than 25 years since the 1998 Guidance was issued, there have been considerable developments in market practices around the world surrounding Internet communications relating to securities offerings, making it timely to revisit the application of the 1998 Guidance, particularly to foreign private issuers.
This article focuses solely on the application of the 1998 Guidance to foreign private issuers posting disclosure on the Internet about or relating to an offering that is not being registered under the US Securities Act of 1933, as amended, and is not intended to address the different considerations that may apply to US domestic issuers.