Will Netflix's SEC Troubles Impact Investors?

More than a year ago, I wrote, "If Netflix  (NASDAQ: NFLX  ) keeps shooting itself in the foot, it's going to need more ammo."

In that article, entitled "Why Reed Hastings Doesn't Get It," I not-too-kindly pointed out that the CEO of the once-thriving company had made a series of completely dumb, entirely avoidable, mistakes that had tanked its share price and left investors reeling.

So, when I read about the SEC investigating one of Hasting's Facebook (NASDAQ: FB  ) posts, I was tempted to think it was last year's news on rerun. Until I looked a little closer.

Selective disclosure?
The SEC informed Netflix that it is recommending bringing civil action against Netflix for a Facebook post the latter made announcing that subscribers were enjoying nearly "one billion hours per month" of viewing. According to the SEC, this post violated Reg FD, which ensures that individual investors have the same access to information as institutional investors. (We saw the impact of Reg FD when we covered insider trading in Congress.)

There are two key issues here:

  1. Is this news?
  2. Does posting it on Facebook count as making it public?

Defining "news"
Hastings "announced" that the company had reached one billion viewing hours. This is not especially earth-shattering news, for two reasons. First, it's an interesting tidbit. But is it news that would affect share price? Only if investors had stopped paying attention when it was a million viewing hours a month, and woke up one morning pleasantly surprised.

Second, the company had mentioned weeks earlier on their corporate blog that it was approaching the one billion mark. Then, it reached it. An accomplishment, sure, but it's the communications equivalent of telling someone you're going to the market, and then telling them that you've gone to the market.

Defining "public"
Hastings made his announcement on Facebook. Publicly. Not to his personal friends and family, and all those awkward high school classmates that kept sending invitations, written as a caption around a smiling Labrador. But publicly. More than 200,000 Facebook subscribers received the news in their feed, and it was available to anyone else who pulled up Hastings' page or searched for his information.

The information spread from there, as it tends to, and soon, the "news" was in several sources. And, incidentally, Hastings mentioned it as a means of congratulating his team, which doesn't exactly say, "evil mastermind at work," but more "nicely done, first round's on me."

Bigger fish to fry
There are certainly more interesting things happening in the world of streaming video than who's tweeting what about whom. Netflix's deal with Disney (NYSE: DIS  ) allows the former exclusive U.S. rights to Disney movies during their post-theatre, pay-per-view period, and for eighteen months after.  According to Fool Doug Ehrman, who covered the Netflix/Disney deal in-depth, Netflix was the only likely candidate, as an Amazon (NASDAQ: AMZN  ) deal would have had retail conflicts, and Coinstar (NASDAQ: OUTR  ) wouldn't have allowed enough control over delivery.

Netflix isn't the only company with social media issues, although most don't involve SEC involvement. As an individual investor, I appreciate that the SEC is going after what it perceives as wrongdoing; however, in this case, the only information that has been accidentally leaked is that the SEC doesn't truly get the nature of social media. I'm willing to bet that more people are on Facebook on any given day than are on the SEC website, making the natures of "public" and "news delivery" fluid things. While I don't subscribe to the status updates of every CEO in whose company I hold stock, I can, should I so choose. I have that option, as does anyone who's remotely interested in what Hastings, and Netflix, are doing.


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