As you point out, I was discussing what the law is and NOT how it may be enforced criminally. Getting prosecutors to prosecute is difficult even for clear and well understood criminal conduct. I know - I have gone to prosecutors many times. They are too busy with the highly visible crimes - crimes they understand - crimes that can build a reputation.
Getting them to prosecute a Reg FD matter would be far more difficult. I suspect it is very unlikely that any Reg FD violation is prosecuted without an SEC referral of the matter. Probabilities are great for statistics. But they will be cold comfort if some prosecutor takes an interest in prosecuting the case - just one more reason to be squeaky clean.
So far so good - I pretty well agree with your practical view.
However, knowing what the law is and observing it is still important even in the absence of effective prosecution. Any time that a company violates a statute, whether it leads to enforcement action or not, that violation can become an element in a tort action, resulting in civil liability and supporting a class action. There are still other dots to connect for the suit to be successful, but in the Reg FD violation area the other elements of culpability, causation and injury will be comparatively easy to show.
Regards,
ij
There are times when rules and precedents cannot be broken; others when they cannot be adhered to with safety. (Thomas Joplin)
AI
