Going public doesn’t just change how you raise capital; it changes how you talk. From the moment a company seriously starts down the IPO path, almost every public statement becomes potential “securities offering” fodder. Get it wrong, and you can end up with delayed effectiveness, rescission risk, embarrassing prospectus disclosure, or an underwriter suddenly “reconsidering” your deal.
This post walks through the three key phases of an IPO from a communications perspective, highlights common traps, and adds some practical, real-world observations you won’t always see in the law firm memos.
The three phases of IPO communications
Securities law divides the IPO process into three rough periods, each with different rules on what you can say and how you can say it:
- Pre-filing period – from the time the company decides to pursue an IPO (practically, when the lead underwriter is selected or the org meeting happens) until the registration statement is first publicly filed.
- Waiting period – from the public filing until the registration statement is declared effective.
- Post-effective period – after effectiveness, while the prospectus delivery requirements are still in place (generally 25 days for exchange-listed IPOs).
Across all three periods, one principle never changes: false or misleading statements are prohibited at all times.
Pre-filing period: the “just don’t start talking” phase
The legal backdrop
Section 5 of the Securities Act makes it unlawful to “offer” securities before a registration statement is filed. “Offer” is interpreted absurdly broadly, not just “We’ll sell you 1 million shares at $10,” but virtually any publicity that could stir up investor interest in the IPO. That’s why pre-filing hype is often called “gun-jumping.”
Practically, the pre-filing period begins once the company is “in registration,” when it has chosen its underwriters, is preparing an S-1, and everyone at the table knows an IPO is the plan.
What this means in practice
During this phase:
- No talking about the IPO itself.
No “We’re planning to go public next year,” no “We’re looking at a Nasdaq listing,” no “We expect to double our valuation in the IPO.” If asked, the safest answer is something like:
“We don’t comment on market rumors or speculation.”
- Avoid market-conditioning publicity.
Press releases, website overhauls that read like pitch decks, and glossy marketing campaigns about the company’s “explosive growth” can all be viewed as attempts to build IPO demand. - No directed share program promises.
Don’t tell employees, customers, or vendors that they’ll “get IPO shares” or be able to participate in a friends-and-family program. Even that can be treated as an “offer.”
Limited safe harbors (used carefully)
There are narrow ways to keep talking without violating Section 5, but they require discipline:
- Rule 163A – 30-day “quiet zone” safe harbor.
Certain communications more than 30 days before the first public filing can be okay if they:- Don’t mention the IPO, and
- The company takes reasonable steps to prevent continued distribution (for example, no paid promotion, limited circulation).
- Rule 169 – ordinary-course factual business information.
You can continue normal-course communications intended for customers, suppliers, etc., product specs, service updates, and operating statistics, as long as:- It’s factual (not promotional puffery about future prospects), and
- It’s consistent with the company’s pre-IPO practice in timing, form and audience.
- Rule 135 – bare-bones IPO announcement.
A very stripped-down press release announcing a proposed offering is sometimes permitted, but it must adhere to a tightly defined set of content.
Observation: The most common mistake isn’t a deliberate media blitz; it’s a founder doing “one last” podcast or conference keynote, talking freely about growth, valuation, and the “next step” being an IPO, right after the bank mandate is signed. If you’re serious about an IPO, those invitations should start going through counsel and the underwriters immediately.
The waiting period: when the S-1 is public but the deal isn’t priced
Once the registration statement is publicly filed, you move into the waiting period. Here, the rules shift:
- Oral offers are now permitted.
- Written offers are allowed only via a compliant preliminary prospectus (and certain very narrow exceptions).
- You still can’t sell until the SEC declares the registration statement effective.
Practical guardrails during the waiting period
- Stick to the four corners of the S-1.
Any investor-facing communications, including roadshow remarks, Q&A, investor meetings, or even casual “coffee chats” with institutions, should be consistent with what’s in the filing. If you’re saying something material that isn’t in the S-1, that’s a red flag. - Treat emails as “writings.”
The SEC views emails and recorded presentations as written communications. So:- No informal emails to “friends of the company” about the deal.
- No explanatory emails to employees about a directed share program, unless vetted and structured properly.
- No distributing decks or handouts at conferences unless counsel and underwriters approve them as compliant materials.
- Be cautious with links and posting.
You shouldn’t be sending out links to the just-filed S-1 or posting it around until it contains a bona fide price range and is being used as part of the formal marketing process.
Testing-the-waters communications (Rule 163B)
Rule 163B permits “testing-the-waters” with QIBs and institutional accredited investors both before and after filing. That sounds liberating, but the risk profile is real.
Best practices:
- Coordinate everything through lead underwriters and counsel.
- Confirm the status of each recipient (QIB or institutional accredited) and preserve clear records of:
- Who was contacted
- When they were contacted
- What was said or shown
- Keep written materials to a minimum; avoid leave-behinds and collect hard copies at the end of meetings.
- Make sure the messaging is consistent with the registration statement; Section 5 and antifraud liability still apply.
Observation: Underwriters increasingly want a clean, auditable record of testing-the-waters communications. Sloppy lists (“we talked to ‘some funds’ in Boston”) create headaches later, especially if a fund that received informal materials later comes in big on the book.
Post-effective period: you’re public, but not fully “free”
Once the registration statement is declared effective:
- Sales can close.
- Oral offers can continue.
- Written offers other than the final prospectus can be used if they are accompanied or preceded by that final prospectus.
But the SEC views the issuer as still “in registration” while underwriters and dealers are obligated to deliver a prospectus, typically 25 days post-effectiveness for an exchange-listed IPO. So you are now operating as both a newly public company and an issuer in a live offering.
Practically, that means:
- Earnings calls, investor days, and media appearances in that window should be vetted as carefully as pre-pricing communications.
- Anything that meaningfully supplements or contradicts the prospectus can create liability or prompt the staff to ask why that information wasn’t in the IPO disclosure.
Observation: The “stickiest” period, reputationally, is often the first 25–90 days. If management spends those weeks doing exuberant TV interviews or overly promotional social-media tours, litigation lawyers and short sellers will save every clip.
Why this all matters: penalties and practical fallout
Section 5 violations are not just technicalities. Consequences can include:
- Delayed effectiveness so the impact of publicity can “cool off”, potentially fatal in a volatile market window.
- Forced disclosure in the prospectus summarizing the problematic communications or disavowing them.
- Rescission rights for investors who received an illegal “offer,” meaning they can demand their money back regardless of whether the statement was actually misleading.
- Pressure from the syndicate to drop an offending bank or to exclude certain investors from the book if they received problematic communications.
In egregious cases, the SEC can pursue enforcement actions; in more mundane cases, plaintiffs’ lawyers may argue that IPO communications “primed the market” and use them to support Securities Act claims.
Practical playbook: how to manage communications in real life
The memo you shared includes a set of practical recommendations based on the audience; below is a consolidated, practice-oriented version with some additional color.
Investment community and analysts
- Before public filing:
- Don’t contact buy-side analysts or potential investors except through the banks that are likely to lead the IPO.
- Decline invitations for “informal” investor meetings.
- After filing:
- Centralize investor communication through the lead underwriters.
- If a fund reaches out directly, loop in the bank and counsel before responding.
Reality check: Every “background” conversation you have with a fund will likely be remembered differently if the stock trades down post-IPO. Assume every remark may later appear in a complaint or be replayed in a deposition.
Employees, customers, suppliers and partners
- Keep messaging limited to ordinary course business topics.
- Avoid:
- “We’re going public; hang on to your options!”
- “You might be able to buy stock in our IPO.”
- Explaining deal size, valuation, or expected trading price.
- Have counsel pre-clear:
- Employee town-hall scripts
- Customer newsletters
- Any “all-hands” emails that may stray into valuation or capital-raising territory
Press releases and earnings calls
- Press releases:
- Stick to factual, historical information the company has historically announced (product launches, key hires, ordinary-course metrics).
- Avoid forward-looking hype about “explosive growth” or “once-in-a-generation opportunity,” especially close to filing.
- Earnings calls:
- If you already do quarterly calls, you can typically continue.
- In the run-up to an IPO:
- Minimize (or eliminate) Q&A.
- Do not discuss the IPO, valuation, or “use of IPO proceeds.”
- Think twice about replaying or archiving the call; what was helpful for bondholders may now function as an illegal written offer.
Website, decks, and investor materials
- Scrub the website shortly before filing:
- Remove old investor decks, out-of-date metrics, and “hypey” language that conflicts with more conservative prospectus disclosure.
- Remove links to third-party analysis of the company or archived investor presentations where possible.
- Conference presentations:
- Discuss each appearance with the underwriters and counsel.
- Industry conferences are generally safer than investor-focused events, but:
- Don’t distribute slides unless pre-approved.
- Avoid recording or webcasting unless there is a specific, pre-cleared plan.
Media interviews and social media
- Avoid interviews with major business press during the IPO process unless tightly scripted and cleared, and even then, weigh whether it’s worth the risk.
- For industry publications and trade press, keep to technical and operational topics; avoid valuation, financing plans, and market size projections.
- Apply the same discipline to social media:
- No “countdown to IPO” posts.
- No celebratory hints about valuation or “ringing the bell” before anything is priced.
Affiliates and significant stockholders
Remind significant investors that their communications about the company may be attributed to the issuer.
- Venture funds, strategic partners, and founders should:
- Avoid touting the upcoming IPO in fund letters, marketing materials, or conference appearances.
- Coordinate with company counsel before using the company’s logo or recent metrics in their own decks.
Final thoughts: treat the IPO as a company-wide NDA with the market
The cleanest mental model for IPO communications is this:
From the moment you mandate banks until 25 days after pricing, imagine you’ve signed a company-wide NDA with the capital markets.
You’re allowed to:
- Keep operating the business.
- Provide regulated disclosure through the S-1, roadshow, and underwriter-coordinated communications.
- Continue ordinary-course factual updates to customers and partners.
You’re not allowed to:
- Freelance with valuation talk.
- “Warm up” investors informally.
- Use the IPO as a marketing hook in PR or business development.
If you build that culture early, especially around founders, C-suite, and major stockholders, you significantly reduce the risk of unpleasant surprises from the SEC, the underwriting syndicate, or the plaintiffs’ bar once you finally ring that bell.
If you are considering taking your company public or would like to speak with a Securities Attorney, Hamilton & Associates Law Group, P.A. is ready to help. Our Founder, Brenda Hamilton, is a nationally known and recognized securities attorney with over two decades of experience assisting issuers worldwide with going public on the Nasdaq, NYSE, and OTC Markets. Since 1998, Ms. Hamilton has been a leading voice in corporate and securities law, representing both domestic and international clients across diverse industries and jurisdictions. Whether you are taking your company public, raising capital, navigating regulatory challenges, or entering new markets, Brenda Hamilton and her team deliver the experience, strategic insight, and results-driven representation you need to succeed.
To speak with a Securities Attorney, please contact Brenda Hamilton at 200 E Palmetto Rd, Suite 103, Boca Raton, Florida, (561) 416-8956, or by email at [email protected].
Hamilton & Associates | Securities Attorneys
Brenda Hamilton, Securities Attorney
200 E Palmetto Rd, Suite 103
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.SecuritiesLawyer101.com