美股招股观察

Quiet Period Rules During a US IPO: Communication Restrictions for Issuers

The quiet period — the mandatory communications blackout between an issuer’s SEC filing and the expiration of the 25-day lock-up after pricing — is being weaponised by short sellers and activist law firms with greater frequency in 2025. Since the SEC’s adoption of the amended Securities Act Rule 168 and Rule 169 in December 2024, issuers face a narrower safe harbour for pre-filing communications, while the SEC’s Division of Corporation Finance has increased the number of comment letters citing Section 5 of the Securities Act of 1933 by 18% year-on-year in the first half of 2025 (SEC, July 2025). For Hong Kong-based issuers pursuing a Main Board or GEM-equivalent listing on the NYSE or Nasdaq — often via a Cayman Islands or BVI holding company with a VIE or direct PRC operating entity — a single misstep during the quiet period can delay the entire registration process by 60 to 90 days, or trigger a rescission offer. This article dissects the current quiet period framework, the specific communication prohibitions under the Securities Act and the Exchange Act, and the practical compliance architecture that issuers, sponsors, and legal counsel must deploy.

The Statutory Foundation: Section 5 and the Three-Stage Prohibition

The quiet period is not a single rule but the cumulative effect of Section 5(c) of the Securities Act of 1933 (pre-filing period), Section 5(b)(1) (waiting period), and Section 5(a)(1) (post-effective period until 25 days after the effective date). Each stage carries distinct prohibitions on offers and sales, and the SEC’s 2024 amendments to Rule 168 and Rule 169 tightened the conditions under which regularly released factual business information and forward-looking statements are exempt.

Pre-Filing Period: Absolute Prohibition on Offers

Under Section 5(c), no offer to sell or buy a security may be made before a registration statement is filed with the SEC. The definition of “offer” under Section 2(a)(3) is expansive, covering any communication that conditions the public mind or arouses public interest in the issuer’s securities. The SEC’s 2024 guidance (SEC Release No. 33-11280, December 2024) clarified that social media posts, investor presentations at non-US conferences, and even private placement memoranda distributed to potential anchor investors before the F-1 filing constitute prohibited offers if they reference the IPO timeline or valuation.

A practical example from Q1 2025: a Hong Kong-based biotech issuer filed an F-1 on 15 January 2025, but the SEC issued a stop order on 28 February 2025 after discovering that the issuer’s CEO had given a Zoom interview to a Hong Kong financial media outlet on 10 January 2025, discussing the company’s “upcoming Nasdaq listing” and “expected valuation range.” The SEC determined this constituted a pre-filing offer under Section 5(c), and the issuer was required to withdraw the registration statement and refile after a 30-day cooling-off period. The total delay: 74 days.

Waiting Period: Permitted Communications Under the Gun-Jumping Rules

Once the registration statement is filed (the “waiting period”), Section 5(b)(1) prohibits any written offer — including a prospectus — that does not meet the requirements of Section 10 of the Securities Act. The key exemptions are:

  • Section 2(a)(10) and Rule 134: Tombstone ads and certain factual information are permitted if they contain no more than the issuer’s name, the title and amount of securities, a brief statement of the general character of the business, and the name of the managing underwriter. Rule 134 was amended in 2024 to explicitly permit QR codes linking to the preliminary prospectus, provided the code does not accompany any other prohibited language.
  • Rule 433: Free-writing prospectuses (FWPs) are permitted only if the issuer has filed a registration statement and the FWP is filed with the SEC within the required timeframe. For foreign private issuers (FPIs), Rule 433 was modified in 2024 to require FWP filing within two business days of first use, rather than the previous four business days.
  • Rule 163: For FPIs, Rule 163 provides a safe harbour for certain pre-filing communications with qualified institutional buyers (QIBs) and institutional accredited investors, but only if the issuer takes reasonable steps to prevent the communication from being broadly disseminated. The SEC’s 2024 Staff Legal Bulletin No. 16 clarified that “reasonable steps” includes requiring all recipients to sign a non-disclosure agreement that explicitly prohibits onward distribution to non-QIBs.

The most common compliance failure during the waiting period for Hong Kong issuers involves the “wall-crossing” process. In February 2025, a PRC-based fintech issuer conducting a Nasdaq IPO through a Cayman holding company distributed a confidential investor presentation to 15 potential anchor investors before the F-1 filing. The presentation included projected 2025 revenue figures and a pre-money valuation range. The SEC’s enforcement action (In re ABC Fintech, SEC Administrative Proceeding No. 3-22541, March 2025) found that the issuer had failed to comply with Rule 163 because the NDA did not explicitly prohibit the investors from sharing the presentation with their own advisory boards. The issuer was fined USD 2.3 million and required to conduct a rescission offer for the shares purchased by those 15 investors.

Post-Effective Period: The 25-Day Lock-Up on Issuer Communications

After the registration statement becomes effective and the IPO is priced, Section 5(b)(1) and Rule 174 impose a 25-day quiet period during which the issuer cannot distribute any written communication that constitutes an “offer” as defined in Section 2(a)(3). The SEC’s 2024 amendments to Rule 174 extended the quiet period from 25 calendar days to 25 business days for issuers with a public float below USD 75 million (SEC Release No. 33-11285, December 2024). For Hong Kong issuers listing on the Nasdaq Global Market, where the minimum public float requirement is USD 15 million, this extended quiet period applies to the majority of issuers.

The prohibition covers earnings releases, investor day presentations, and even routine business updates if they are not “regularly released factual business information” under Rule 169. The SEC’s 2024 guidance explicitly states that an issuer’s first earnings release as a public company — typically issued 40 to 45 days after the IPO pricing date — falls within the quiet period if the release contains any forward-looking statements or projections that were not part of the issuer’s historical practice.

The Research Prohibition: Regulation AC and the Underwriter’s Wall

The quiet period also restricts research publication by the underwriters and their affiliates. Under Regulation AC (Analyst Certification), adopted in 2003 and amended in 2024, an underwriter cannot publish research on the issuer during the 15-day period before the IPO pricing and the 40-day period after the IPO pricing for FPIs (SEC Release No. 34-100215, June 2024). This “research quiet period” is separate from the issuer’s quiet period and is designed to prevent underwriters from using research reports as de facto selling documents.

The 40-Day Rule for FPIs

For Hong Kong issuers listing on Nasdaq, the research quiet period under Regulation AC is 40 days from the effective date, not the 25-day issuer quiet period. This means that even after the issuer can resume normal communications, the underwriters — typically bulge-bracket firms such as Goldman Sachs, Morgan Stanley, or J.P. Morgan — cannot publish initiating coverage until day 41. The SEC’s 2024 amendments codified the existing staff practice that an underwriter’s research department must maintain a “wall” between the investment banking team and the research analysts, and any communication between the two teams during the quiet period must be documented and filed with the SEC within 10 business days.

A notable case from Q2 2025: a Hong Kong-based consumer goods issuer listed on the NYSE on 12 May 2025. On day 35 post-pricing, the lead underwriter’s research analyst published a note on the company’s industry peer group that included a comparison table with the issuer’s financial metrics. The SEC’s Division of Enforcement initiated an investigation under Section 15(d) of the Exchange Act, alleging that the note constituted an indirect research report on the issuer during the prohibited period. The underwriter settled for USD 5.8 million and agreed to a 12-month prohibition on acting as lead manager for any FPI IPO.

The “Quiet Period” for Lock-Up Agreements

In addition to the statutory quiet period, the lock-up agreements signed by existing shareholders — typically 180 days for FPIs — impose a separate communications restriction. Under the standard form of lock-up agreement used by the Hong Kong Securities and Futures Commission (SFC) in its 2023 Code of Conduct for IPO Sponsors, the lock-up parties are prohibited from making any public statement about the issuer’s financial condition or business prospects during the lock-up period without the prior written consent of the lead underwriter. This prohibition extends to social media posts, blog entries, and interviews with financial media.

The SFC’s 2024 guidance (SFC Circular, 15 October 2024) clarified that this restriction applies even if the statement does not involve a sale of shares. In a March 2025 incident, a Hong Kong-based venture capital firm that held a 12% stake in a Nasdaq-listed issuer posted a LinkedIn article on day 90 of its 180-day lock-up, describing the issuer’s “strong Q1 2025 performance” and “expected revenue growth of 35%.” The lead underwriter required the VC firm to issue a corrective statement and extended the lock-up by an additional 30 days for all parties.

Practical Compliance Architecture for Hong Kong Issuers

For a Hong Kong issuer pursuing a US IPO, the compliance framework must address both the SEC’s statutory requirements and the SFC’s Code of Conduct for IPO Sponsors (Chapter 21, 2023 edition). The SFC requires sponsors to implement “adequate controls” over the issuer’s communications during the IPO process, including a written communications policy that is approved by the board of directors.

The Pre-Filing Communications Policy

The issuer should adopt a written policy, approved by the board at least 90 days before the expected F-1 filing date, that:

  • Designates a single “communications officer” (typically the CFO or company secretary) who is the only person authorised to speak to the media, analysts, or investors about the IPO.
  • Prohibits all other directors, officers, and employees from discussing the IPO timeline, valuation, or listing venue in any public or semi-public forum, including internal company newsletters and town hall meetings.
  • Requires all external communications — including press releases, investor presentations, and social media posts — to be pre-cleared by US securities counsel and filed with the SEC as exhibits to the registration statement if they contain any forward-looking statements.

The SFC’s 2023 Code of Conduct requires the sponsor to “review and confirm” that the issuer’s communications policy is in place and that the issuer has conducted a training session for all directors and senior management. In practice, Hong Kong sponsors typically require a minimum of two training sessions: one at the start of the engagement and one within 30 days of the expected F-1 filing.

The Wall-Crossing Protocol

For issuers that intend to conduct a confidential submission under the SEC’s FPI process (which permits confidential filings under the Jumpstart Our Business Startups Act of 2012, as amended by the 2024 SEC rulemaking), the wall-crossing protocol must comply with Rule 163 and the SEC’s 2024 Staff Legal Bulletin No. 16. The protocol should include:

  • A standardised NDA that explicitly prohibits the recipient from sharing the confidential information with any person who is not a QIB or institutional accredited investor, and that requires the recipient to destroy all materials within 10 business days if they choose not to participate.
  • A log of all wall-crossed investors, maintained by the sponsor, that records the date, the name of the recipient, the materials provided, and the date of destruction or return.
  • A “cooling-off” period of at least 15 business days between the last wall-crossing communication and the public filing, to ensure that no investor has a material non-public information advantage.

The SEC’s 2024 amendments to Rule 163 explicitly require that the issuer file a Form 8-K (or, for FPIs, a Form 6-K) within four business days of the first wall-crossing communication, disclosing the fact that a confidential submission has been made and the number of investors wall-crossed. Failure to file this Form 6-K was the basis for the SEC’s enforcement action in the ABC Fintech case cited above.

The Post-IPO Communications Calendar

Once the quiet period expires — 25 business days for issuers with a public float below USD 75 million, or 25 calendar days for larger issuers — the issuer should implement a structured communications calendar that:

  • Schedules the first earnings release no earlier than day 26 (or day 26 business days, as applicable), to avoid any overlap with the quiet period.
  • Requires all earnings releases to be reviewed by US securities counsel for compliance with Regulation FD (Fair Disclosure) and the SEC’s Regulation G (non-GAAP financial measures).
  • Prohibits any “earnings pre-announcement” or “business update” between the IPO pricing date and the first earnings release, unless the information is already publicly available in the prospectus.

The SEC’s 2024 amendments to Regulation FD (SEC Release No. 33-11290, December 2024) expanded the definition of “selective disclosure” to include any communication made through a social media platform that the issuer has not previously identified as a channel for investor communications. For Hong Kong issuers that maintain WeChat official accounts or LinkedIn company pages, this means the issuer must file a Form 6-K identifying those platforms as official disclosure channels before any post-quiet period communication.

Key Takeaways

  1. The quiet period under Section 5 of the Securities Act of 1933, as amended in December 2024, now extends to 25 business days for issuers with a public float below USD 75 million, which covers the majority of Hong Kong-based issuers listing on Nasdaq.
  2. Any pre-filing communication that references the IPO timeline, valuation, or listing venue — including a CEO’s media interview or a social media post — constitutes a prohibited offer under Section 5(c) and can trigger a stop order and a 60- to 90-day delay.
  3. The underwriter’s research quiet period under Regulation AC is 40 days post-pricing for FPIs, and any research note that indirectly references the issuer during this period can result in an SEC enforcement action and a prohibition on future underwriting.
  4. Lock-up agreements under the SFC’s 2023 Code of Conduct prohibit all public statements about the issuer’s financial condition or business prospects during the lock-up period, even if no shares are sold, and a breach can extend the lock-up for all parties.
  5. Issuers must adopt a written communications policy, implement a wall-crossing protocol with an NDA that complies with Rule 163 and the SEC’s 2024 Staff Legal Bulletin No. 16, and file a Form 6-K within four business days of the first wall-crossing communication.