Readers of these alerts are aware – or should be – that, beginning on April 13, 2023, Form 144 filings will have to be submitted electronically. Aside from some of the challenges discussed in our earlier alert, companies should be aware of another unintended consequence of this requirement.
Specifically, given the difficulty of tracking paper filings, few people follow Form 144 filings; as a result, they get little or no publicity. Sales are therefore generally reported only as they actually occur and are reported on Form 4. However, once Form 144 filings are made electronically, the media and others will likely be able to track Form 144 filings more easily and to report anticipated insider sales, rather than reporting sales only as they occur.
It is not unusual for Form 144 filings to show the maximum number of shares to be sold under Rule 144 so that, if market conditions permit, an insider can dispose of as many shares as possible. The number of shares actually sold under Rule 144 can be lower than the number appearing on the Form 144 filing – and in some cases substantially lower, or none at all.
Due to the requirements of Rule 144, many brokers (and insiders) may continue the practice of reporting the maximum number of shares that may be sold. At a minimum, those insiders and their companies should be prepared to get questions on Form 144 filings and, more importantly, to answer those questions.
Please direct any questions or observations to Gunster securities law and corporate governance practice leader Bob Lamm.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Naples, Orlando, Palm Beach, Stuart, Tallahassee, Tampa Bayshore, Tampa Downtown, Vero Beach, and its headquarters in West Palm Beach. With more than 260 attorneys and consultants, and over 270 committed professional staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.
