Articles Posted in JOBS Act

SEC Acts to Put into Effect Provision of JOBS Act that Allows General Advertising and Solicitation in Securities Offerings

Published on: September 4, 2012 | by Shepherd Smith Edwards & Kantas, LLP

Last week, the SEC proposed rules that would get rid of the ban against general advertising and solicitation of certain securities offerings under Rule 144A and Rule 506 of Regulation D of the Securities Act. The rules are mandated under the Jumpstart Our Business Startups Act.

Currently, companies that want to raise money through securities sales have to depend on an exemption from registration or register the offering with the SEC. The majority of the SEC’s exemptions from registration, including Rule 506, don’t allow companies to take part in general solicitation/advertising related to the securities offering.

However, the newly enacted JOBS Act mandates that the Commission take away the general advertising/solicitation prohibitions on securities offerings related to Rule 506. Section 201(a)(1) of the JOBS Act even directs the SEC to amend Rule 506 to allow general solicitation/advertising as long as the buyers of the securities are investors that are accredited. It also says that the rules shall make sure the issuer exercises reasonable steps to confirm that the buyers are accredited investors and that it is up to the Commission to determine what these methods would be.

Will the JOBS ACT Will Expand Private Offerings But Hurt Public Markets?

Published on: July 6, 2012 | by Shepherd Smith Edwards & Kantas, LLP

Participants at the D.C. Bar panel on June 21 talked about whether the Jumpstart Our Business Startups Act is going to increase private placements but at a cost to public markets. The JOBS Act, which was enacted in April, facilitates the IPO process for emerging growth companies, ups the threshold for activating registration requirements, creates, under Regulation A, new exempt securities of up to $50 million, and gets rid of the general advertising and solicitation restrictions for Regulation D Rule 505 offerings.

Meantime, Attorney Tyler Gellasch, who is Sen. Carl Levin’s (D-Mich.) counsel (he was clear to articulate that his views are his own and don’t necessarily reflect the opinions of the senator), also said that he doesn’t expect there to be a lot of IPOs with this easing of rules for private offerings. He noted that while changes to Reg D Rule 506’s offerings would broaden the world of private securities, the greater threshold now provided for issuer registrations under the 1934 Securities Exchange Act has “significantly” reduced the impetus for going public.

Gellasch believes that many investors have become mistrusting of IPOs in the wake of so many of them lately not performing well upon completion of their first year. The controversies this year involving the IPOs of Facebook (FB) and BATS Global Markets Inc. haven’t helped.

He also talked about how Congress failed to perform its own cost-benefit analysis when it enacted the statute and that no extensive hearings took place about the new requirements. Among the unforeseen circumstances that have already developed are the efforts that have been made reverse merger companies to employ the on-ramp provisions to obtain a foothold in US markets.

Gellasch said that JOBS Act brings up questions that it fails to answer, such as whether the benefits that the act creates for some entities should also be given to other entities that are similar and involved in analogous circumstances. (For example, while mutual fund advertising continues to be very regulated, hedge funds are getting to avail of fewer restrictions imposed on their advertising.) He also wondered about who is now responsible for supervising Rule 506 offerings, determining whether advertisements and solicitations are accurate, and ensuring that offerings don’t turn into boiler rooms as they relate to the act’s crowdfunding provisions.

Gellasch wants to know who will now be liable for investor losses.

The JOBS Act (PDF)

More Blog Posts:

Should Retail Investors Be Given Greater Access to IPO Information?, Stockbroker Fraud Blog, June 29, 2012

Investor Groups, Securities Lawyers, and Business Community Comment on the JOBS Act Reg D’s Investor Verification Process

Published on: June 24, 2012 | by Shepherd Smith Edwards & Kantas, LLP

The Jumpstart Our Business Startups Act’s Title II eliminates the general solicitation and general advertising ban for offers and sales of private offerings under 1933 Securities Act Rule 144A and Reg D Rule 506 as long as the offerings’ buyers are accredited investors. Now, five investor groups have written a letter to the Securities and Exchange Commission recommending that when the regulator implements this change, it should “enhance the standards” that issuers have to adhere to when confirming that only accredited investors are buying the offerings. The groups are the Consumer Federation of America, Fund Democracy, AFL-CIO, Consumer Action, and Americans for Financial Reform. They believe that such enhancements are necessary because removing the ban will significantly decrease investor protections even as fraudulent behavior is likely to increase.

Right now, the SEC is in the process of writing rules for the new requirements that come with the statute. It has 90 days from April 5, when the JOBS act was enacted, to implement Title II. While under the statute’s Rule 506, the offerings’ issuers are required to take “reasonable steps” to confirm that buyers are accredited, Rule 144A issuers only have to “reasonably believe” that the buyers are qualified institutional purchasers. In their letter, the investor groups argued that Congress most certainly intended for the Commission to set up more rigorous the standards for identifying accredited investors. They are recommending that at the very least, the SEC substantially increase the Rule 506’s accredited investor standard for individual investors in each of the two most recent years to at least $400,000 in yearly income (up from at least $200,000) or $2.5 million in net worth, with the primary residence’s value subtracted (up from $1 million). They also said that the Commission should mandate that issuers that decide to engage in general solicitation and advertising file Form D in advance, enhance filing and recordkeeping requirements having to do with buyers’ accredited investor status, and think about excluding non-accredited investors from taking part in all Rule 506 offerings.

Offering different perspectives from these investors groups are securities lawyers and business groups. For instance, the National Investment Banking Association is pressing the SEC to make sure that any rule promulgated on the verification process is one that issuers of all sizes can meet. Meantime, the Securities Industry and Financial Markets Association wrote a letter to the SEC in April arguing that the steps that Title II requires shouldn’t create a greater burden than the existing “reasonable belief” standard of Rule 506. The American Bar Association Business Law Section’s Federal Regulation of Securities Committee said in its letter that what are considered reasonable steps should be determined by circumstances, facts, and the accredited investor category that applies. The group believes that the Commission’s rules should reflect existing practices and customs that take such factors into consideration.

SEC Investor Advisory Committee Members Warn the Commission Not to Neglect Its Rulemaking Duties Even While Working to Implement the JOBS Act

Published on: June 21, 2012 | by Shepherd Smith Edwards & Kantas, LLP

Members of the Securities and Exchange Commission’s Investor Advisory Committee are cautioning that it is imperative that the SEC not ignore its rulemaking obligations that it was tasked under the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act even as it seeks to implement the new capital formation statute. The Jumpstart Our Business Startups Act was enacted in April.

The investor advisory committee, which is a new group at the SEC that was created under Dodd-Frank to provide the Commission advise about regulatory priorities, disclosure requirements, and investor protections, held their inaugural meeting on June 12. The committee takes the place of a prior one that was disbanded in 2010.

The JOBS Act
The JOBS Act is focused on helping smaller businesses gain access to capital. Per the statute’s Title II, the SEC has to allow general advertising and solicitation for private placement sales and offers under 1933 Securities Act Rule 144A and Regulation D Rule 506 as long as the buyers are accredited investors. The SEC’s Division of Corporation Finance associate director and chief counsel Thomas Kim has said that staff members are in the process of trying to determine how to practically implement the requirements so that investor protection isn’t compromised even as issuers are given some flexibility. Also, seeing as status or assets have resulted in a number of “prongs” for determining which entities or individuals are “accredited investors,” Kim noted that it was “reasonable” that issuers would take different steps to confirm accreditation depending on the accredited investor’s category.

Kim also spoke about how the crowdfunding rulewriting deadline of 270 days, which the SEC was given (under Title III of the JOBS Act) to come up with a registration exemption for crowdfunding, which involves “crowds” of investors sourcing small fund amounts, would be challenging to meet. A regulatory framework currently exists for the Title II modification to Rules 144A and Rules 506. However, the SEC would have to essentially make up from “whole cloth” a regulatory structure that incorporates disclosure requirements, funding portals, and other aspects from a completely new category of exempt offerings.

“An intense battle is being fought in Congress over Dodd-Frank efforts to ‘re-regulate’ the securities industry after the debacle caused by the ‘deregulation’ of that industry over the previous decade,” said Shepherd Smith Edwards and Kantas Founder and Stockbroker Fraud Attorney William Shepherd. Many believe such changes, if any, are months if not years away. Meanwhile, legislation to lower the bar in the issuance of new securities is sailing through at breakneck speed – proof positive as to who our representatives represent.”

JOBS Act (PDF)

More Blog Posts:

Advisory Performance Fee Rule Limit Adjusted by the SEC, Stockbroker Fraud Blog, July 30, 2011

Dire Predictions For Wall Street Reforms: Not Complete Until 2013, Even Longer to Implement, Half May Not Survive, Stockbroker Fraud Blog, May 12, 2012