Articles Posted in SEC Policy

This can be a crucial question.  U.S. Securities laws are manageable with guidance from an experienced U. S. Securities lawyer, but if you are involved in a transaction and do not realize it is subject to the U. S. Securities laws, you are headed for big trouble.

Recent Cases Provide Insight Into Applicability of United States Securities Laws to International Transactions

In recent years, the question of when the United States’ securities laws may apply to international transactions has been a prominent topic for various United States courts.  Until a few years ago, questions of whether United States Securities laws apply to international transactions were primarily determined by two tests:

(1) the “effects test,” which asked whether any wrongful conduct, like fraud, had a substantial effect in the United States or upon United States citizens; and

(2) the “conduct test,” which asked whether the wrongful conduct had taken place in the United States.

In 2010, however, the Supreme Court of the United States propounded entirely new methodology for determining whether United States Securities laws are applicable to international transactions in Morrison v. National Australia Bank Ltd.[1] Continue reading

As previously noted in this blog (see “Private Placement Brokers Await Attention by SEC” June 6, 2017) and in this firm’s sister blog (see “Private Placement Brokers Should be Legalized along with M&A Brokers” in the RIA Compliance Blog, Jan. 21, 2015), there has long been a large gray market of unregistered private placement brokers. Also see “Report and Recommendations of the Task Force on Private Placement Broker-Dealers” (American Bar Association Business Law Task Force, 2005). This cadre, often call themselves “finders,” in the vain hope that such self-description will enable them to escape regulation as a securities Broker/Dealer, which they clearly are by definition. Finders have continued to operate in plain sight, with little response from the SEC other than the issuance of a few inconsistent no-action letters and an occasional enforcement action against such brokers whose conduct was egregious in other ways.

Hester Peirce, the newest Republican commissioner at the SEC, has called on the agency to address this malfunction in our securities laws at a recent Practicing Law Institute program. Commissioner Peirce proposes establishing a new regulatory scheme for finders in small business capital formation transactions that “works for them.” We would hasten to add that any solution to this problem must also work for the small businesses that use finders and those that invest through finders.

Congress has previously approached the comparable problem of M&A Brokers by establishing an exemption rather than a new regulatory structure. We would urge the Commission to explore a similar approach to finders before creating an entire new regulatory scheme and the bureaucracy to operate that scheme. Such an exemption must create protections for both investors and the businesses raising capital, such as a prohibition on the finder taking possession of the investment or making any representations that were not contained in a written Private Placement Memorandum approved by the issuer. The process of developing any such regulatory scheme or exemption will hopefully involve active participation by persons who participate in this market.

In his first public speech as the newly-appointed head of the SEC, Chairman Jay Clayton delivered an outline of the “guiding principles” that he will look to in guiding his leadership of that agency going forward. Clayton delivered his remarks on July 12th to the Economic Club of New York in New York City. The full text of Clayton’s speech may be found on the SEC’s website.

The primary takeaway from Clayton’s speech is that under his tenure, capital formation issues will likely take a higher profile, and, in turn, the concerns of businesses seeking ways to raise capital will likely be given a heavier weight of consideration than in the past.

In what was generally a bullish speech for the advancement of capital formation, Clayton first and foremost reiterated the SEC’s three-part mission to: (1) protect investors, (2) maintain fair, orderly, and efficient markets, and (3) facilitate capital formation. However, Clayton specifically noted that “each tenet of that mission is critical,” stating that “if we stray from our mission, or emphasize one of the canons without being mindful of the others, investors, companies (large and small), the U.S. capital markets, and ultimately the economy will suffer.”