For the first time, the Securities and Exchange Commission (the "SEC") issued a Wells Notice based on a social media communication. The Wells Notice informed Netflix, Inc. and its CEO of the SEC's intent to recommend an enforcement case under Regulation FD based on statements the CEO made on Facebook in July 2012. The CEO posted that Netflix, Inc. had reached a milestone of 1 billion hours of streamed videos in a month for the first time. Under Regulation FD, an issuer may not disclose material nonpublic information to certain groups, either intentionally or unintentionally, without disclosing the same information to the marketplace at large. To date, the SEC has not issued guidance on whether social media networks can satisfy the disclosure requirements of Regulation FD. The closest the SEC has come is an interpretive release issued in 2008 permitting the use of company websites that are "recognized channels of distribution" to disclose certain types of information.
Netflix, Inc. Current Report on Form 8-K filed Dec. 5, 2012