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Additional Lessons in Social Media and the Securities Laws Courtesy of Zipcar

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On Friday night DealBook reported that Zipcar, the car-sharing company which Avis Budget Group recently agreed to acquire, filed a Form 8-K earlier in the evening to disclose the following tweet by CEO Scott Griffith:

Scott Griffith Tweet

Zipcar also filed a copy of The Boston Globe article referenced in Griffith’s tweet and a copy of a transcript from Griffith’s CNBC interview earlier that day.

For the most part the remainder of Dealbook’s brief article goes on to discuss Netflix CEO Reed Hastings’ July 2012 Facebook posting and the potential Regulation FD issues surrounding that posting, including Netflix and Hastings’ recent receipt of Wells notices from the Securities and Exchange Commission.

But Zipcar’s filing on Friday night wasn’t about Regulation FD, which to its credit Dealbook does acknowledge:

Zipcar made the S.E.C. filing about Mr. Griffith’s Twitter message because the transaction with Avis is subject to Zipcar’s shareholder approval and securities laws dictate that the company must file with regulators any announcements that could be construed as soliciting shareholder votes.

Unfortunately, that single sentence was placed without elaboration in the middle of a discussion about the role of Regulation FD in the age of social media. So it seems like this might actually be a Regulation FD issue. But it’s not.

Zipcar’s Form 8-K filing is about the proxy solicitation rules. As Zipcar is in the process of being acquired by Avis, it must seek shareholder approval of its merger agreement, which in turn requires that Zipcar file a proxy statement to solicit shareholder votes and proxies.

Whenever anyone “solicits” proxy authority, regardless of whether it’s the company, an officer, director, shareholder or even a third-party proponent, that person must meet certain disclosure and filing requirements. While not every communication qualifies as a solicitation, the Commission does define the term broadly to include any communication—whether in the form of a widely distributed announcement or a private email message—that is reasonably calculated to result in the procurement, withholding or revocation of a proxy.

If a communication qualifies as a solicitation and it’s in writing then it must be filed with the Commission on the same day that it’s first published, sent or given to a shareholder. Written communications encompass all forms of information not otherwise disseminated orally and generally include things like blog posts, tweets, slide presentations and videos (which must be transcribed when filed).

Which is exactly what’s going on here. Griffith’s tweet and the other exhibits to Zipcar’s Form 8-K are being filed as proxy solicitation materials, not as some last-minute filing after a CEO tweet slips out (as might be inferred from the Dealbook piece). What’s more, Zipcar’s legal team seems to be right on top of its social media presence, having previously filed tweets by both the company and Griffith on January 2nd:

Zipcar Tweet

Scott Griffith Tweet

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