In accordance with the FD Regulation, selective disclosure can be made as long as the company first requests a confidentiality agreement from the other party (or the other party is already subject to a duty of trust and trust). Although the agreement does not imply the obligation to take action against the information, the regulation was strongly motivated by the desire to facilitate the prosecution of selective information in the event of insider trading, since in many cases only persons who are liable for such an obligation are subject to such prosecutions. Thus, the SEC said in the proposal release: We recommend that state-owned enterprises treat the media as if they are subject to FD regulation. This means z.B. that if a company wishes to provide a journalist with advance information about an imminent transaction so that a more detailed article can be published at the same time as the public announcement of the transaction, the company should obtain an explicit agreement from the newspaper to keep the information confidential until the authorized publication date. The FD Regulation applies to returns relating to « Regal » IPOs and all unregistered offers from so-called enterprises, including Rule 144A and Regulation S offers, PIPE transactions and traditional private placements. State-owned enterprises that make unregistered bids must either disclose to investors all essential information that is not publicly disclosed, or seek explicit trust agreements from investors. In addition, the information provided at street shows relating to these offers is subject to the FD regulation and companies must therefore be cautious in making statements made at these meetings. The acceptance communication indicates that the information is « not public » if it has not been disseminated in a way that makes it widely available to investors. The legal risks associated with this practice have been reinforced by the FD regulation. A duly agreed conference call, to which the public invested will have access, is the publication of statements made by the company during the appeal.

However, essential non-public statements that are made in individual or other restricted situations are clearly selective revelations. Deliberate disclosure of essential non-public information in this context is a violation of FD regulation. When essential non-public information is involuntarily disclosed in such an environment, the company must disclose it without delay.