Industry News

New Development in Federal M&A Broker Legislation

February 16, 2015 | Dan MacIntyre

On February 3, 2015, H.R. 686, a bill creating a registration exemption for M&A Brokers, was introduced in the House of Representatives and referred to the Committee on Financial Services. This new bill is identical to Section 401 of H.R. 37, which included other financial regulations and had passed the House on January 14, 2015. H.R. 686 essentially duplicates the M&A Broker section – Section 401 of H.R. 37. Introducing this M&A Broker proposal as its own bill could signal a possible lack of confidence of behalf of lawmakers that an adequate amount of votes are available to pass H.R. 37 in the Senate and a hope that Section 401 can make it on its own and become law.

As discussed in previous posts, the M&A Broker exemption proposed by Congress in H.R. 37 – and now in H.R. 686 – fails to address the “grey area” of unregistered actors who participate in private placement of securities that are not M&A transactions. These Private Placement Brokers play an important and integral part for smaller businesses trying to raise capital. Having the M&A Broker exemption on its own in H.R. 686, and not with other significant financial regulations, may allow for amendments to be added more easily. Hopefully one of those amendments would be a Private Placement Broker exemption.

How NASAA’s Proposed Model Rule Exempting M&A Brokers Stacks Up Against Other Efforts

February 10, 2015 | Dan MacIntyre

The Broker-Dealer section of the North American Securities Administrators Association (“NASAA”) recently sent out a notice of request for comment on a proposed uniform state model rule (“Model Rule”) that would exempt merger and acquisition brokers (“M&A Brokers”) from state securities registration if certain requirements were met. While NASAA’s proposed Model Rule is similar to the recent SEC No-Action letter concerning M&A Brokers and the exemption for M&A Brokers provided by HR 37, there are some notable differences. Comments on the Model Rule must be submitted to NASAA by February 16, 2015.

First, this post will lay out the three current proposals by SEC staff, Congress, and NASAA to create an M&A Broker registration exemption. Second, a comparison between all three will be made in order to highlight how each body plans to regulate and define the scope of the exemption for M&A Brokers. Each comparison will be broken up into key aspects of each proposal’s efforts to create an exemption for M&A Brokers. Third, this post will emphasize the need to create an exemption, along with M&A Brokers, that will encompass other important unregistered actors: Private Placement Brokers.
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NASAA Unveils Electronic Filing Depository

January 26, 2015 | Chadd Reynolds

On December 15, 2014, the North American Securities Administrators Association (“NASAA”) launched an online electronic filing system to be used for issuers filling Form D, Rule 506 offerings with state securities regulators. The purposes of this new electronic filing depository (“EFD”) website, according to NASAA president William Beatty, are to provide an efficient and streamlined process for regulatory filings and to allow for increased transparency for investors.

Issuers seeking an exemption under Rule 506 must meet certain requirements in order to avoid having to register their public or private offerings with the SEC or state regulators. However, those issuers must still file a notice of exempt offering of securities, or “Form D,” with the SEC and state securities regulators. Instead of the longer and more tedious process of registering with securities regulators, Form D requires only limited information about the issuer, the investors, and the securities offered.
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Private Placement Brokers Should Be Legalized Along with M&A Brokers

January 21, 2015 | Dan MacIntyre

In 2005, an American Bar Association task force published an exhaustively researched report that highlighted a huge “gray market” of unregistered brokerage activity, conducted by people that sometimes refer to themselves as “finders,” that is critical to the development of early stage companies, but operating in technical violation of the Securities Exchange Act of 1934 (“ABA Report”). Other than occasional enforcement actions against bad actors, the SEC did little to address this problem until early 2014, when it issued a No-Action letter which blessed certain restricted activities of merger and acquisition brokers (“M&A Brokers”). The SEC’s approach to other private placement brokers has been to restrict their activities even further. Compare Paul Anka, SEC No-Action Letter (July 24, 1991) (granting legal “finder” status) with Brumberg, Mackey & Wall, PLC., SEC No-Action Letter (May 17, 2010) (restricting “finder” status). Courts have not always agreed with the SEC. See SEC v. Kramer, 778 F.Supp.2d 1320 (M.D. Fla. 2011) (proposing a non-exhaustive six-factor test for registration).

On January 6th, the first day of the 114th Congress’s new session, the House of Representatives considered H.R. 37. This bill proposes again multiple pieces of legislation that passed the House in the previous congress but were not taken up by the Senate. The bill has now been remanded to the House Committee process. H.R. 37 contains eleven separate items which would affect the current financial regulatory landscape. One of the proposed provisions responds to concerns about financial intermediaries such as finders that participate in mergers and acquisitions. This blog post advocates that Congress, while considering legalization of M&A Brokers, should also legalize a limited class of private placement brokers.
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SEC to Conduct Presence Exams for Never-Before Examined Investment Advisers in 2015

January 20, 2015 | Chadd Reynolds

During the January 7th Practising Law Institute conference on Hedge Fund Compliance and Regulatory Challenges, the Director of the SEC Office of Compliance Inspections and Examinations (“OCIE”), Andrew Bowden, previewed some of the new priorities on which the SEC will focus in 2015. Some of the areas of focus include protecting investors, specifically those in or close to retirement, cyber security, and the use of data analytics to identify potential wrongdoers. One of the other priorities discussed was OCIE’s new initiative to use “presence exams” to examine certain investment advisers that have never been examined. Investment advisers who have been registered with the SEC for three or more years will potentially be selected for a presence exam.

Presence exams are less intensive, shorter exams, taking up about two-thirds the time of a regular SEC examination. These exams tend to be more narrow in scope and focus on specific areas of concern that the SEC may have. In October 2012, SEC staff created presence exams for investment advisers who were required to register with the SEC for the first time because of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). These newly required SEC registrants under Dodd-Frank included, for example, hedge fund advisers with more than $150 million in assets under management. Bowden stated that the SEC performed close to 400 of these exams and that OCIE’s goal to examine 25% of the investment advisers required to register with the SEC under Dodd-Frank by 2014 was met.
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SEC to Focus on Variable Annuities and Alternative Mutual Funds in 2015

December 22, 2014 | Chadd Reynolds

Last month at the American Law Institute’s Conference on Life Insurance Company Products, the chief of the SEC’s Office of Compliance, Inspections, and Examinations (“OCIE”) informed attendees that the agency will increase its focus on variable annuities during 2015. Also attending the conference was the Director of the SEC’s Division of Investment Management (“DIM”), who discussed his views on how to address concerns created by new trends in variable annuities and the recent growth of alternative mutual funds.

One of the reasons for the increased focus on variable annuities is that broker-dealers are beginning to sell more and more of these products to their clients, said the SEC’s chief of OCIE. As a result, OCIE exams will include discussions with broker-dealers about what the insurance companies are telling them about the products they provide to make sure broker-dealers understand the products they are selling and are accurately explaining the products to their clients.
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New Indiana Crowdfunding Act Exemptions

September 9, 2014 | Bryan Gort

The Indiana Securities Division recently issued an emergency rule to explain new distinctions in Indiana’s crowdfunding exemptions, which became effective July 1, 2014. Indiana’s new rule is similar to Georgia’s “Invest Georgia” rule, which we have previously profiled.

The Invest Indiana Crowdfunding Exemption, Sec. 23-19-2-2(27), permits Indiana-organized entities to offer or sell securities for intrastate offerings to Indiana residents only. The exemption requires the Indiana-organized entity to file with the Indiana Securities Division SEC Form D, which clearly states “Indiana Only” on the first page, and to include a cover letter identifying that the filing is for the 23-19-2-2 (27) exemption, and to include a $100 filing fee. The Exemption details the requirements for both issuers and investors in regards to an Invest Indiana offering.
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SEC Approves FINRA Self-Trading Rule

May 28, 2014 | Steve Parker

Earlier this month, the Securities and Exchange Commission (SEC) approved a change to Financial Industry Regulatory Authority (FINRA) Rule 5210. The rule now requires member broker-dealers to implement and enforce policies and procedures “reasonably designed” to monitor and prevent “self-trading” activity. See SEC Release No. 34-72067.

The rule, in its amended form, is designed to provide FINRA with increased ability to monitor and limit the “unintentional” interaction of orders that come from the same firm. This issue is distinct from any self-trading that are the products of fraudulent or manipulative design. Rather, FINRA’s rule will attempt to limit the misleading impact that this unintentional self-trading has on marketplace data and trade volume of a security.

The rule change will place new restrictions on self-trading activity that occurs as a result from one or related algorithms or that originate in one or related trading desks. Self-trading, as used by FINRA, does not result in a change in beneficial ownership and may or may not be a bona fide trade. The agency believes that self-trading, even conducted without fraudulent or manipulative intent, may be disruptive to the marketplace and distort information on a given security. The agency points to data it has collected that show self-trading of this kind may account for five percent or more of a security’s daily trading volume.
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Public Solicitations on Rule 506 offerings

February 7, 2014 | Bryan Gort

Several Congressmen and an SEC Commissioner have independently urged the SEC to move forward with adopting proposed rules that impose additional requirements on public solicitations of Rule 506 offerings. At the same time that the SEC finalized its initial rulemaking on the subject last September, it proposed additional rules that would require filing Form D prior to any general solicitation and would impose advertising restrictions, among other things. We discussed that action and the proposed rules in two earlier posts.

Rule 506 was adopted as a safe harbor under Section 4(2) of the Securities Act of 1933, which provides that securities sold “by an issuer not involving any public offering” are exempt from registration under the Act. However, under Title II of the JOBS Act, passed in 2012, Congress required the SEC to adopt a rule allowing for the use of public solicitation in those offerings under conditions to be prescribed by the SEC. The initial rule adopted last September – requiring enhanced verification of accredited investor status – was the Commission’s first small step on the issue.

The comment period on the simultaneous rule proposal imposing additional requirements expired on November 4, 2013, but the Commission has taken no further action to date. On December 5, 2013, however, SEC Commissioner Luis Aguilar, speaking at a Consumer Federation of America conference, forcefully called upon the rest of the Commission to move forward in adopting the strengthened rules. “Every day that these proposals are not adopted is another day that investors face great harm. I’m frustrated because investors are going to be damaged” said Commissioner Aguilar. “Unfortunately, it’s been almost five months since those proposals have been issued for comment.”
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SEC Enforcement Actions in 2013

January 27, 2014 | Bryan Gort

The SEC has released the results of the 686 2013 enforcement actions it filed in federal court, which resulted in $3.4 billion in sanctions against offenders. Of the $3.4 billion, securities violators were required to disgorge illegal profits of approximately $2.257 billion and pay penalties of approximately $1.167 billion. The chairperson of the SEC, Mary Jo White, stated, “A strong enforcement program helps produce financial markets that operate with integrity and transparency, and reassures investors that they can invest with confidence.”

The 2013 total sanction amount is 10 percent higher than 2012 and 22 percent higher than 2011. In 2013, the SEC pursued many categories of enforcement actions including:

– Broker-dealers (121)
– Delinquent Filings (132)
– Foreign Corrupt Practices Act (5)
– Financial Fraud/Issuer Disclosure (68)
– Insider Trading (44)
– Investment Adviser/Investment Co. (140)
– Market Manipulation (50)
– Securities Offering (103)
– Other (23)

The SEC highlighted certain enforcement programs on which they had focused in 2013 and programs that they will emphasize for the foreseeable future. The SEC is focused on making sure gatekeepers, people that have special duties to ensure that the interests of investors are protected, safeguard and protect investors’ rights.
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