6.4 Other Marketing Activities and Other Public Statements
In offering its securities, the issuer’s discussion of matters relating to its credit is often not confined to the OS. Issuers also make formal presentations to rating agencies or prospective credit enhancers (generally before publication of the POS), and often make presentations to groups of prospective major investors (bond funds or other institutional purchasers). Issuers make these presentations during the period of time between the publication of the POS and the pricing of the securities, each of which must conform with the anti fraud standards discussed in Section 6.1.1, Anti-fraud Rules. There are often “internet road show” slides prepared by the underwriters to assist in marketing. These communications, while important to a successful issuance, pose risk because they can form the basis for securities claims, yet the speakers often approach them with less formality than statements that have been made in OSs. Issuers should ensure that communications with rating agencies, credit enhancers, and potential investors are carefully prepared and reviewed in advance, and that any additional written materials available to investors, such as an internet road show, are entirely consistent with and only contain information that can be found in the POS.
Information provided to rating agencies and credit enhancers can go beyond that provided to investors by including greater detail, technical analysis, and conjectural or other soft information not appropriate for a disclosure document. In providing such information, though, the issuer should consider whether such information is consistent with the OS or should be included in the OS to avoid misleading investors, and whether such information is accurate and not misleading for the particular purposes for which it is being presented.
Public information offered by the issuer (including statements by officials and information posted on the issuer’s website intended to or expected to reach and affect the market for municipal securities) can also be viewed as statements about the issuer’s securities. Although offering public information cannot and should not be prevented, it is important that care be taken and that the accuracy and completeness of these types of statements be considered in the light of the circumstances under which they are being made.