Netflix CEO Reed Hastings sometimes deals with investors in quirky ways — and one instance involving a Facebook posting may prove to be too quirky for regulators who oversee the securities markets. The streaming company just disclosed that SEC staff sent a “Wells Notice,” a warning that they will recommend to the commission that it institute a cease and desist proceeding or bring a civil action against Hastings for violating fair disclosure rules. Hastings says (yes, in a Facebook post) that the matter involves a message in July that Netflix subscribers streamed 1B hours of content in June. When Hastings made the comment on Facebook, he didn’t also communicate with the Street in a more formal, and conventional, way — with a public filing at the SEC. The filings are supposed to guarantee that companies disclose material information to all investors equally, not selectively to a few. Hastings says he believes that his posting to more than 200,000 Facebook fans “is very public, especially because many of my subscribers are reporters and bloggers.” In addition he says that “we think the fact of 1 billion hours of viewing in June was not ‘material’ to investors, and we had blogged a few weeks before that we were serving nearly 1 billion hours per month.” Although Netflix shares rose the day of his disclosure, Hastings says that the movement began earlier in the day and was “likely driven by the positive Citigroup research report the evening before.” He adds that he’s “optimistic this can be cleared up quickly through the SEC’s review process.”
Besides the reliance on Facebook, each quarter Netflix eschews the conventional way of disclosing earnings — with a press release that includes the income statement, balance sheet, and cash flow statement. Instead the company files two documents: a letter to investors with a summary of the results, and an electronic spreadsheet with the detailed numbers. Also the company’s quarterly analyst briefing is divided into two parts: one where an aide poses questions to Hastings based on emails analysts send in advance, and another where a few analysts ask him questions directly. Most companies just let analysts ask their questions directly.
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