"Can you please kindly point me to an example, just one example, of where the disclosure of the fact of a "Wells Submission," without disclosure of any of the substance contained in the submission, was either found or specified to be a securities law violation?"
You know I would if I could (and I did say "probably"). :o)
I didn't examine all the 3,170 results from a Google search for ["wells submission" disclosure], but skimming a bunch of them suggested that I would not find any anecdotal evidence either supporting OR refuting my proposition. In fact there was little sign of any announcement by companies that a Wells Submission had been made, whether formally and including the substance included therein or a la the communication suggested by the poster...something along the lines of "the company has responded to the Wells Notice". There may be an obvious reason for this.....should the SEC subsequently bring a complaint anyway it would indicate that the submission wasn't convincing. In addition, there is an obvious reticence on the part of most companies to comment on the process at all given that it involves the potential for litigation and any disclosure at all carries some risk. For a company to say anything BEYOND "We've filed a Wells Submission" would undoubtedly be frowned upon by the company attorneys and that statement alone doesn't make for much of a press release (or 8-K). Finally, the SEC staff is entitled to decline to accept a Wells Submission under certain circumstances and a previous announcement by the company that one had been made would obviously have negative repercussions.
So no, I can't give you the requested example.....after a brief search anyway (I'm not entirely ready to admit that none exists). But my point was based on my understanding of the laws that might apply and not some example that I had in mind. And THAT I can provide:
Regulation FD (excerpts)
Rule 100 -- General Rule Regarding Selective Disclosure
a. Whenever an issuer, or any person acting on its behalf, discloses any material nonpublic information regarding that issuer or its securities to any person described in paragraph (b)(1) of this section, the issuer shall make public disclosure of that information as provided in Rule 101(e):
1. Simultaneously, in the case of an intentional disclosure; and
2. Promptly, in the case of a non-intentional disclosure.
b. 1. Except as provided in paragraph (b)(2) of this section, paragraph (a) of this section shall apply to a disclosure made to any person outside the issuer:
iv. Who is a holder of the issuer's securities, under circumstances in which it is reasonably foreseeable that the person will purchase or sell the issuer's securities on the basis of the information.
Obviously this law, as in many securities laws, carries with it some subjectivity.....especially here: "under circumstances in which it is reasonably foreseeable that the person will purchase or sell the issuer's securities on the basis of the information."
Who could know whether the recipient of "kristina's" disclosure from the company's office, which I believe would qualify her as someone acting on the company's behalf, would be moved to buy shares? It's that subjectivity that led me to use the word "probably" in my post. On the other hand, had someone acting on the company's behalf told a shareholder that the company had decided NOT to file a Wells Submission, I don't think that it would be hard to argue that such a disclosure might move such a person to SELL shares. Subjective, right?
It's a theoretical argument. That said, I don't believe that my failure to provide an example in any way proves that the legal interpretation is invalid. It could be argued to the contrary: Example's aren't readily available because most companies know better, when a Wells Submission has been made, than to selectively disclose that information to a random caller.
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