Firms Delay IPOs: Facebook Or JOBS Act?

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Firms Delay IPOs: Facebook Or JOBS Act?

Facebook Inc (NASDAQ:FB) caused waves across the financial markets when it first offered its shares to the public in May. Tech companies have been hit the hardest by the offering and many are rethinking their business plans going forward. What many thought would be the epitome of a new tech bubble turned out to a possible depression in the sector.

Since that disaster many firms have delayed their IPOs and many are citing Facebook’s performance and the poor market conditions resulting from it for those decisions. While that makes sense, given the effect the IPO has had on confidence, but there may be another reason behind the delaying tactics.

The JOBS Act has introduced a new confidential process that will allow a firm to submit their filings to the SEC without public oversight. That is just one of the many new rules contained in the act that has caused controversy. The process is open to “small” companies that have revenues of under $1 billion a year. Under the act those are dubbed “emerging growth companies.”

That provision may be the reason, combined with Facebook’s failure, for many of the companies in question deciding to forgo the usual IPO process and proceed confidentially. Since the process became available more than 30 companies have gotten into the process. That compares to only 20 firms filing publicly since the act went into effect.

A small number of the firms that filed confidentially had initially filed publicly but altered their filings to be confidential. That is a worrying trend as the process is untested and it is unknown what effect it will have. It is certain that it will lead to less transparency in coming IPOs.

Under the new law a company that files confidentially does not have to reveal its documents until 21 days before its IPO roadshow. Kayak Software Co. and vKontakte, a Russian social network, are two of the firms that have decided to delay their IPOs in  light of Facebook’s trouble.

The question is, how many firms are delaying IPOs so that they can take advantage of the confidential process? It is certainly true that there is a downturn in the sector after the leading light’s problems. There are, however, a number of firms willing to get get out of their public IPOs in order to take advantage of the confidential process.

Kayak is the most well known firm that has decided to delay but there are surely a plethora of others considering taking the same route. The advantage of confidentiality cannot be lost on them.

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Facebook’s IPO has changed a great deal of things in the tech sector and it may drive more firms toward confidentiality. That is a dangerous trend. Firms driven by the lessons from recent weeks will inevitably go toward a more forgiving confidential process.

This will continue. The tech sector is changing, and confidentiality looks like a much easier avenue toward a public offering. Firms that qualify will continue to switch to the process and delay their IPOs to avail of it.

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