Rule 10b-5 and the Duty to Disclose Merger Negotiations in Corporate Statements

Abstract

A corporation whose stock is traded on any national stock exchange is subject to the disclosure requirements of both the federal securities laws 1 and stock exchange rules.-The purpose of disclosure is to provide investors with adequate information on which to base investment decisions and to maintain fair and orderly securities markets. 3 Premature disclosure of corporate merger negotiations, however, poses a substantial threat to investors because of the likelihood that disclosure will cause the negotiations to terminate, causing shareholders to lose valuable merger premiums. In recognition of this potential loss, both Securities and Exchange Commission Rule 10b-5" and the rules of the major stock exchanges 5 generally permit corporations to delay disclosure of merger negotiations until the parties reach an agreement in principle to merge. 6 When rumors develop or there is unusual trading activity in a stock, however, stock exchange rules do require that a corporation either disclose the reason for the unusual activity or make a public statement to the effect 1. Securities Act of 1933, 15 U.S.C. § § 77a-77aa (1982); Securities Exchange Act of 1934, 15 U.S.C. § § 78a-78kk (1982). 2. See NEw YORK STOCK EXCHANGE LISTED COMPANY MANUAL § 2, reprinted in 3 Fed. Sec. L. Rep. (CCH) 11 23,513-23,557 (1985) [hereinafter NYSE MANUAL]; AMERICAN STOCK EXCHANGE COMPANY GUIDE § § 401-05, reprinted in 3 Fed. Sec. L. Rep. (CCH) i 23,124A-23,124E (1985) [hereinafter ASE GUIDE]. 3. Assertions of the policies underlying the disclosure requirements of the Securities Acts are included in H.R. REP. No. 85, 73d Cong., 1st Sess. 1-2 (1933) (statement of President Roosevelt that 1933 Act is "but one step in our broad purpose of protecting investors"); H.R. REP. No. 1383, 73d Cong., 2d Sess. (1934); SEC, THE WORK OF THE SECURITIES AND EXCHANGE COMMISSION V (1974) [hereinafter WORK OF THE SEC] ("securities laws were designed to facilitate informed investment analyses and prudent and discriminating investment decisions"); Hewitt, Developing Concepts of Materiality and Disclosure, 32 Bus. LAW. 887, 891 (1977) (investors protected by disclosure "in that members of the securities industry would be deterred from engaging in questionable practices"); NYSE MANUAL, supra note 2, 23,515 ("[a] sound corporate disclosure policy is essential to the maintenance of a fair and orderly securities market"); ASE GUIDE, supra note 2, 23,124A ("the conduct of a fair and orderly market requires every listed company to make available to the public information necessary for informed investing"); see also infra notes 11-12. 4. 17 C.F.R. § 240.10b-5 (1986). 5. The two major American stock exchanges are the New York Stock Exchange (NYSE) and the American Stock Exchange (ASE). The NYSE is the more important in terms of the value of stock traded. Approximately 94% of trading (based on the dollar value of traded stocks) takes place on either the NYSE or the ASE. SECURITIES, EXCHANGES AND THE SEC 65 (P. Tyler ed. 1965). 6. See infra notes 27-30 and accompanying text. ...