While you were distracted with the “nuclear situation” over at TechCrunch, Groupon, apparently, took the opportunity to make things even more toxic for itself in the press by once again flouting the SEC-mandated quiet period between filing for an IPO and actually going public.
Just before the long weekend, Michael Buckley from Brunswick Group, a PR firm employed by Groupon, not only called peHUB reporter Connie Loizos to complain about a story, but to get her facts straight, Mr. Buckley suggested taking a look at a leaked memo from Groupon CEO Andrew Mason that somehow found its way into Kara Swisher’s hands at AllThingsD. Yup, the very same leaked memo that Henry Blodget alleged violated securities law. Ms. Swisher’s role in that aside, as Ms. Loizos points out, the quiet period does not permit “calling journalists and urging them to read leaked CEO letters.”
As Fortune.com‘s Dan Primack sees it, however, the fault lies with the SEC, not Groupon. In the latest issue of the magazine, he makes his position clear with the headline, “It’s time to kill the IPO quiet period.”
Even Ms. Loizos seems to agree that change is in order, writing, “I don’t begrudge Brunswick for wanting to defend its client, and like a lot of people, I think the SEC’s quiet period could use some updating.”
But Mr. Primack calls for throwing out the rule book altogether in part because the “antiquated” quiet period regulations only hold for the public and “ultimately protect one set of investors at the expense of another”:
The irony, however, is that while Groupon cannot easily defend itself in public, it will soon be able to do so in front of a select, private audience of institutional investors who may participate in the IPO.
Companies going public typically produce an electronic road show, in which the CEO and other company executives make a presentation about the company and then take questions from prospective investors. It is available to the public online until the stock begins trading. In these sessions CEOs are instructed to keep referring to the IPO prospectus and not speak too much off the cuff.
What follows are private meetings with the money managers. Transcripts are rarely kept, and some sources say that a comment like Lefkosky’s would not be unusual. Neither would an answer to a question that the CEO declined to address during the electronic road show. Even if CEOs stick to the script, hedge fund managers can watch body language and other nonverbal cues that the public never sees.
Mr. Primack’s populist message that, “It’s time for the SEC to let companies communicate more freely with everyone, not just the chosen few,” is convincing, to a point. Mr. Primack seems certain that modern-day tech investors are savvy enough to put optimistic company-issued statements in perspective. But if execs like Groupon chairman Eric Lefkofsky gave out a soundbite about Groupon being “wildly profitable” the day after the quiet period went into effect, just imagine what he’d do with the muzzle off.