I was not debating whether the rule exists. I know the rule exists. This is not one of the listed items. Statutes and regulations are specific. Liability is not specific. Liability is not enforced by the SEC, it requires plaintiffs and valid legal claims pled with specificity.
If a company said, look, the common perception of what we had and what we really received are two different things. It was the holiday season and during a pandemic and we had x number of experts who needed to review the complex array of data before we could put out an adequately informative release, we were careful, there was no indiscreet disclosure to persons who would trade, and we made no statements suggesting results were one way or the other, they would be allowed the business judgment rule.
Now, if the FDA told them, specifically, “there is no way we will approve if the data does not show x” and it does not show x, sure, that is unambiguous, not the 4 day rule, but they should disclose quickly. On the other hand, if they have discussed sub categories, and that data may be really good, but they need to process the data, or they need to make sure their historical data can’t be misconstrued or said to be inaccurate, they would have time to develop their understanding of the data.
Doesn’t matter that they got it 4 days before because the 8K 4 day rule does not address that situation specifically.
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