On September 26, the SEC adopted new rules that will allow all companies, regardless of size or reporting status, to use “testing the waters” communications. Under the new rules, any issuer or any person authorized to act on the issuer’s behalf will be able engage in oral or written communications to qualified institutional buyers and institutional accredited investors, before or after the filing of a registration statement, to assess investor interest in the offering. Currently, pre-filing testing the waters communications may be made only by “emerging growth companies” and underwriters acting on their behalf.

The new rules will become effective 60 days after publication in the Federal Register, probably in December.

Further details on the proposals will be available shortly in The Securities Edge, our securities and corporate governance blog. If you have any questions in the meantime, please contact Gunster securities law and corporate governance practice leader Bob Lamm or Gus Schmidt.

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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.

About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 12 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, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach, and its headquarters in West Palm Beach. With nearly 200 attorneys and 200 committed support 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


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