Securities Regulation

Securities Regulation Chapter 18 Meiners, Ringleb & Edwards The Legal Environment of Business, 12th Edition

Corporate Finance • Securities • May be debt (debt securities) of certain form • Note or bond that can be traded • May be equity (equity financing) • Most famous are common stocks traded on New York Stock Exchange • Securities provide capitalfor business operations • Securities represented by • Pieces of paper or records in computers • Represent value in something real

Debt and Equity Debt • When bonds are sold, there is often an issueof a certain amount • Bonds usually traded on securities market, so are securities • Debt financing may also occur by borrowing money from large lenders (banks, insurance companies) • Instrument usually specifies: • Amount of debt • Length of period • Repayment method • Rate of interest charged • Handled by professionals who earn commissions Equity • Equity financingis raising funds through sale of company stock • Sale of company stock to purchasers – (shareholders) • Shareholders have claim to future profits of company • Company is not obligated to repay shareholders • Can usually be traded

Origins of Securities Regulation • States began with blue sky laws to deter fraudulent securities sales • Most important Federal laws are: • Securities Act of 1933 • Regulates initial public offerings of securities • Securities Exchange Act of 1934 • Regulates trading in existing securities, disclosure requirements, securities markets and professionals • Securities and Exchange Commission • Agency responsible for enforcement and administration of federal securities laws

What Is a Security? • Merely calling somethinga security does not make it so • Have higher legal standardsfor securities • Four basic elements (Howey Test): • Investment of money • In a common enterprise • With an expectation of profits • Generated by efforts of persons other than the investors

Securities Exempt from Regulation • Issued or guaranteed by government • Federal, state or local • Issued by banks • Issued by religious and charitable organizations • Insurance policies • Annuity contracts • See Issue Spotter “What Are You Selling?”

Offering Securities to Investors • ‘33 Act requires fulldisclosure of all materialinformationon security, issuers, and intended use of money before sale to public. • Material informationis all relevant information an investor would want to know: • Background • Executives • Plan of operation • See “Securities Offering on the Web”

CaseLatta v. Rainey • From 2001 -2004, Mobile Billboards of America (MBA) sold mobile billboard “investments” in U.S. Investors given “offering circular” to comply with federal and state regulations. Billboard units were $20,000. • Leased the unit for 7 years to Outdoor Media Industries (OMI), a “shell company” owned/operated by MBA’s principals. • Investors promisedaverage return of 13.49% per year. After 7 years, MBA would buy back the billboards & return investment. MBA claimed it had a Reserve Guaranty Trust (RGT) – $5,000 of each $20,000 would be placed in RGT. • Investors received a certificate to receive share of money earned by funds invested in RGT, plus the right to the $20,000 investment. • Latta, terminally ill, wanted a secure investment. Rainey, “Certified Senior Advisor” with MBA (of North Carolina) said Billboards was a “safe company – “absolutely no risk”. • Latta invested $100,000. (Continued)

CaseLatta v. Rainey • Rainey received a commission of 16-20%. Lattas received “lease payments” from OMI the first year. This was classic Ponzi Scheme. • Secretary of State of North Carolina, investigated. MBA ordered to cease and desist from sales. Rainey collected Latta’s final investment. • Latta and others sued. Rainey filed for bankruptcy; Mr. Latta died. • Trial Court Held: MBA billboard sales were unregistered securities – violation of federal and state law. Also breach of fiduciary duty by Rainey to Latta, fraudulent concealment, securities fraud and conversion. • Jury awarded Mrs. Latta $95,503.40, plus $750,000 punitive damages. Court reduced punitive damages to $286,510. Rainey appealed. • HELD: Affirmed. • Elements of fraud: (1) False Representation or Omission of Material Fact, (2) Intent to Deceive, (3) Reasonable Reliance (by Lattas) • All elements were present here.

The Registration Statement • Prospectus (SEC Schedule A) • First version of prospectus not yet approved by SEC: Called red herring – red ink on 1st page • Provides material information about: • Issuer’s finances and business • Purpose of the offering • Plans for funds collected • Risks involved • Promoter’s managerial experience and financial compensation • Financial statements certified by independent public accountants

The Registration Statement • Regulation S-K • More detailed disclosure than in prospectus • Used by investment analysts • Available for public inspection • Review by SEC • Doesn’t rule on merits (likelihood of success) • Can require issuers to indicate high-risk factors to buyers • Registration effective 20 days after filing, but SEC can issue deficiency letter and issuer will need time to amend the filing • Can issue stop orderto prevent sale until examiners are happy • Costs of Registration • Expensive! • Need securities attorney, CPA, printer, underwriter, etc. • Need to hire an underwriter (i.e. investment banker)

Exemptions from Registration • Some securities, while subject to securities laws, are exempt from registration requirements: • Government Bonds • Private Placements • Not offered to the public • Usually placed w/institutional investors (pension plans or insurance companies) • Regulation D specifies what will qualify as a private placement exemption • Made to accredited investors – presumed sophisticated and wealthy – complex rules • Common Reg. D offerings are called Small Corporate Offering Registration (SCOR) • Rule 144A sale of bonds or stocks to qualified institutional buyers (QIBs) investors w/portfolio of at least $100M

WKSIs • Well-Known Seasoned Issuers • Securities issued by WKSIs • Issuers that have issued at least $1 billion in securities previously OR • Have public-equity market capitalization of at least $700 million • Includes most well-known securities firms • They can file registration statements the day new offering is announced rather than submitting for SEC staff review beforehand • Can continuously update information – even on Website • Securities are under shelf registration – once announced and registered, they may be sold at any time over next 3 years.

Regulation of Securities Trading • If registered under ‘33 Act, must register under ‘34 Act; • If exempt under ‘33 Act, must register • If traded on an exchange or over the counter (OTC) and has >$5M assets and 500+ shareholders • Publicly Held Company • Publicly traded stock • Most traded OTC • Must file 10-K annual report • Privately Held Company • Less than 500 shareholders • Not openly traded

Proxies and Tender Offers • Regulation FD (Fair Disclosure) in 2002 tried to create a “level playing field,” requiring public companies to release information to the public rather than selective revealing of information • Proxies • Permission by shareholders given to someone else to vote their shares in the manner they instruct • Tender Offers • When one company attempts to take over another • Target company’s stock owners are offered stock in the acquiring company or cash in exchange for their stock

Securities Fraud • Investors mayhave trouble proving common-law fraud • Usually rely on antifraud provisions of ‘33 and ‘34 Act for statutory fraud • ‘33 Act: Misleading statements or material omissions on original registration materials • Rule 10b-5 • Basis for Securities Fraud; used more than other Act sections • Civil liability for misstatements • Unlawful to: • Employdevice, scheme to defraud • Makeuntrue statement of material fact • Engage in act or practice which operates a fraud in connection with purchase/sale of security

Liability for Securities Law Violations • Can sue parties who prepared disclosure docs or other impt. info about securities • Can also sue: • Directors of company, CEO, CFO and accounting officers, accountants, lawyers • SEC may also act against them with civil penalties and criminal charges • Have liability for misstatements or omissions about financial status of business with publicly traded securities

Liability for Misstatements Safe Harbor • Securities Litigation Reform Act of 1995 • Allows companies to predict profits and their likely success as long as forecasts are accompanied by “meaningful cautionary statements” that ID “important factors that could cause actual results to differ materially from those in the forward-looking statement.” • Gives immunity from liability Federal Exclusivity • Securities Litigation Uniform Standards Act of 1998 • Requires securities suits that involve nationally traded securities to be brought “exclusively” in federal court under federal law.

CaseCity of Livonia employees Retirement System v. Boeing Company • Class action suit for all who bought Boeing stock between May 4 and June22, 2009. Key allegation: Boeing was overly optimistic about ability to get new 787 Dreamliner into service. Technical problems known after test flight; official first flight delayed. Stock fell 10% on June 23. • Suit claimed company executives made false statements about when plane would be in service and therefore committed securities fraud. District Court dismissed suit. Plaintiffs appealed. • HELD: Affirmed. Case dismissed. • Private Securities Litigation Reform Act of 1995 changed securities fraud litigation. • (1) Requires plaintiff complaining about “forward looking” statements (predictions or speculations about the future) to prove “actual knowledge” of falsity on part of defendant • (2) Complaint must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind” • This is rather than mere inference. • “Required state of mind” is “scienter.” • Use “a reasonable person test” (Continued)

CaseCity of Livonia employees Retirement System v. Boeing Company • There is no securities fraud by hindsight • Law does not require public disclosure of mere risks of failure • No predictions have a 100% probability of being correct • Future is uncertain • Market debut may be delayed or even abandoned • Purchasers of Dreamliner protected themselves by reserving the right to cancel their orders • If top executives knew statements were false, that is one thing • Here no evidence that executives made statements they knew to be false.

Sarbanes-Oxley Act • CEO and CFO of companies with publicly traded stock must personally certify that financial reports comply with SEC rules. • Knowing misstatementshave criminal fines and imprisonment. • Protection also for corporate whistleblowers. • Established Public Company Accounting Oversight Board to discipline CPAs for misconduct & also sets accounting standards. • Sarbanes-Oxley has forced firms to standardize procedures and accounting.

Insider Trading • Most controversial application of 10b-5 is prohibiting insider trading • Insiders have access to info not available to public • May be liable to SEC for profits from such transactions • See “London, New York and Sarbanes Oxley Act”

CaseU.S. SEC v. Ginsburg • Scott Ginsburg, CEO of Evergreen, owned radio stations; met with CEO of EZ Communication to discuss “strategic alternatives.” Ginsburg called his brother, Mark, and his father Jordan. Next day, Mark bought 3,800 shares of EZ stock; Jordan bought 20,000. • Day after, Evergreen and EZ began confidential merger discussions. Cell phone calls were made from Scott to Mark and Jordan. Large purchases of EZ stock followed. • EZ’s stock rose 30% -- Mark made $413,000 and Jordan made $664,000. • SEC brought civil actions against Ginsburg for securities violation – communicating material nonpublic information to brother and father. (Continued)

CaseU.S. SEC v. Ginsburg • Jury: Found he violated rule against insider trading; $1 million in penalties. • Trial court set aside verdict; said evidence insufficient that Ginsberg tipped off his brother and father; SEC appealed. • HELD: Reversed and remanded with instructions for court to reinstate $1,000,000 penalty and enjoin Ginsburg from future violation of securities laws. • SEC must prove violations by “preponderance of evidence.” May use direct or circumstantial evidence. • Telephone call/trade pattern, coupled with jury’s right to disbelieve “innocent explanations”, are enough to support the verdict.

Insider Trading Acts • Insider Trading Sanctions Acts of 1984 • Gives SEC authority to bring enforcement actions. • The law was strengthened by the Insider Trading and Securities Fraud Enforcement Act. • Increased the maximum fine to persons to $1 million per action and set maximum prison term to 10 years per violation. • Corporate fines were raised to $5 million per willful violations. Up to $25 million for non-willful violations. • See Issue Spotter “Can You Exploit the Gossip?”

The Investment Company Act Investment Companies • Three types • Face-amount certificate companies – issue debt securities paying fixed rate of return • Unit investment trusts – offer fixed portfolio of securities • Management companies– most important type Mutual Funds • Open-end Company (Mutual Fund) • No specific number of shares; expand as long as new investments • Invested in portfolio of securities • Two kinds of mutual funds: • Load: Sold through securities dealer; have commissions (load) of some % of price • No-Load: Sold directly to public through mail or Internet; no sales commissions

Regulation of Investment Companies • Register with SEC • State Policy and provide financial information • Annual reports • Capital requirements • Payment of dividends • Registration and Disclosure • Securities registered • Disclosure requirement of the SEC for publicly-traded securities • Limiting Conflicts of Interest • Restrictions on who may be on Board of Directors • At least 74% must be outsiders • Invested funds can’t be used for deals with persons affiliated with company’ • All deals “arm’s length”

The Investment Advisers Act • Investment Adviser is a “person who, for compensation, engages in the business of advising others . . . as to the advisability of investing in, purchasing or selling securities” • Hired by investment companies • Registered with SEC • Manage operations • “Deemed to have a fiduciary duty with respect to receipt of compensation for services” rendered to company. • See “European Approaches to Insider Trading”

Professional Responsibility to Clients • Brokers • Effecting transactions for the account of others • Dealers • Buying and selling securities for own account • Advisers • Charging fees for investment advice • Must be registered with SEC • Can’t churn • Excessive buying and selling of client’s account to get commissions • Can’t scalp • Buy stocks for personal benefit then urge clients to buy so price goes up

Stock Market Regulation • New York Stock Exchange and other exchanges governed by the Financial Industry Regulatory Authority (FINRA) • An independent regulatory authority that sets rules of behavior for its traders and handles most disputes by arbitration; also oversees brokerage firms and employees • Self-Regulation of Securities Markets • SEC has power to monitor stock markets • Regulation of Securities Transactions • Regulates actions of securities • Professionals who do actual trading • Professionals can’t trade for their own benefit ahead of customers • Penalties: Include suspension or expulsion

Arbitration of Disputes • Usually investors with investment firms sign a standard form indicating disputes must be arbitrated, not litigated. • SEC rules govern the arbitration process. • The Supreme Court upholds the binding nature of arbitration agreements.

Dodd-Frank Wall Street Reform and Consumer Protection Act • Dodd-Frank Wall Street Reform Act (2010) • Established new regulatory authority in consumer credit area • Regulators oversee general market conditions – prepared to act in case of crisis • Oversight of “systemic risk” – market-wide problem • Example: Financial meltdown in 2007-08 by the Financial Stability Oversight Council • Regulators can intervene in financial institution in case of trouble • Trading of derivatives also open to greater regulatory oversight • Greater desire for transparency

Securities Regulation