For the second time in less than six months, the SEC has filed a rare Regulation FD case. On Tuesday, the agency filed a case against Presstek, Inc. and its former CEO, Edward J. Marino. Is this a new area of emphasis for the SEC? It is probably too early to tell, but it is worth keeping an eye on. It is also interesting to note the SEC's very different treatment of the companies involved in these two cases based on the company's response to the alleged violations.

The Commission alleges that on September 28, 2006, Marino "selectively disclosed" material non-public information regarding Presstek's financial performance during the third quarter of 2006 to a managing partner of a registered investment adviser. Within minutes, the SEC claims, the partner decided to sell all of the shares of Presstek stock his firm managed. The SEC alleges that contrary to Regulation FD, Presstek did not simultaneously disclose to the public the information provided by Marino to the partner.

Presstek has agreed to settle the SEC's case by paying a $400,000 civil penalty and taking several other significant steps, including:

revising its corporate communications policies and corporate governance principles;

replacing its management team and appointing new independent board members; and

creating a whistleblower's hotline.

The case against Marino has not settled and is ongoing.

In September 2009, the SEC sued Christopher A. Black, the former CFO of American Commercial Lines, Inc., for allegedly aiding and abetting ACL’s violation of Regulation FD. The complaint alleged that on June 11, 2007, ACL issued a press release projecting second quarter earnings in line with ACL’s first quarter earnings of approximately $.20 per share. Five days later, however, on Saturday, June 16, Black allegedly sent an e-mail from his home to the eight sell-side analysts who covered the company stating that ACL’s earnings per share for the second quarter “will likely be in the neighborhood of about a dime below that of the first quarter,” effectively cutting in half ACL’s second quarter earnings guidance.

The SEC alleged that the resulting analysts’ reports triggered a nearly 10% drop in ACL’s stock price on Monday, June 18, the first trading day after Black’s e-mail to analysts. Black agreed to settle the case by paying a $25,000 penalty.

Unlike in the Presstek case, however, the SEC did not bring an enforcement action against ACL, noting in its litigation release that prior to the violation, ACL "cultivated an environment of compliance" by providing training regarding the requirements of Regulation FD and by adopting policies that implemented controls to prevent violations. Moreover, the SEC stated that once the illegal disclosure was discovered by ACL, it promptly and publicly disclosed the information by filing a Form 8-K with the Commission the same day, and self-reported the violation to the SEC the day after it was discovered.