The Securities and Exchange Commission’s Division of Economic and Risk Analysis (DERA) has regularly updated its studies regarding the market for unregistered securities offerings.  The most recent study provides data through the end of 2017.  Over $3.0 trillion was raised in unregistered securities transactions in 2017.  By contrast, registered offerings accounted for approximately $1.5 trillion.  Approximately $1.8 trillion was raised in Regulation D offerings, which surpasses the amount of capital raised in public offerings.  Of this amount, most was raised in Rule 506(b) offerings and pooled investment vehicles.  Some “repeat” issuers have switched to Rule 506(c).  Approximately 65% of the Regulation D offerings (by number) involve equity offerings.  The data presented in the study is based on information contained in Form D filings and, as a result, may understate the actual level of activity.

On September 25, 2018, the Securities and Exchange Commission’s (“SEC”) Division of Trading and Markets released Compliance and Disclosure Interpretations (“C&DIs”) to frequently-asked questions regarding Regulation Crowdfunding. Specifically, the SEC provided C&DIs related to the Rule 300 series of Regulation Crowdfunding which applies to requirements for intermediaries, including broker-dealers and funding portals. Additionally, the SEC Staff provided C&DIs related to the Rule 400 series of Regulation Crowdfunding, which contains rules specifically applicable to funding portals.

These address, among other things, the financial interests of an intermediary in the issuer, due diligence requirements for intermediaries, requirements for the delivery of educational materials by intermediaries, intermediary requirements with respect to transactions, changes and cancellation of an offering, and intermediary payments to third parties for directing investors to their platform. The SEC Staff notes that an intermediary is permitted to have a financial interest in the issuer.

Additionally, the C&DIs provide instructions on how to register as a funding portal and notes amendments to Form Funding Portal must be made within 30 days after information previously submitted becomes inaccurate. Moreover, interpretation was given regarding the Rule 402 conditional safe harbor for funding portals and recordkeeping requirements for funding portals.

The C&DIs can be found in full on the SEC’s website.

The Securities and Exchange Commission recently released its Strategic Plan for fiscal years 2018 to 2022.  The plan identifies three goals.  The first goal is to focus on the long-term interests of Main Street investors.  In order to accomplish this objective, the SEC intends to: enhance its outreach and educational efforts; pursue enforcement initiatives related to retail investor misconduct, including microcap fraud; modernize disclosure requirements and the EDGAR system; and promote investment options for retail investors by expanding the number of companies that are SEC-registered and exchange-listed. The second goal relates to enhancing data security.  To further this goal, the SEC will focus on ensuring that market participants are engaged in managing cybersecurity risks.  The third goal is to invest in the SEC’s analytical capabilities and human capital development.  The SEC intends to continue to expand the use of risk and data analytics in detecting improper behavior and bringing enforcement proceedings.

On October 1, 2018, a public petition was filed with the US Securities and Exchange Commission for a rulemaking on environmental, social and governance (ESG) disclosure. The Petition was authored by two law professors and signed by investors and associated organizations representing more than $5 trillion in assets under management.

This Legal Update outlines what the petition’s authors are requesting—and why.

In recent comments, Commissioner Peirce shared her views on the role of the Securities and Exchange Commission in expressing a view regarding mandatory arbitration provisions. Commissioner Peirce noted that, in her opinion, the SEC does not have grounds to object to mandatory arbitration provisions. She noted that the Federal Arbitration Act “directs federal agencies to respect private contracts that favor arbitration.” To the extent that a corporate charter or bylaws are viewed as private contracts, the Federal Arbitration Act would seem to limit the authority of the SEC to prohibit a mandatory arbitration provision that is otherwise permissible under applicable state law. The Commissioner noted that it has been reported in the past that the Staff of the SEC has not allowed domestic registrants with mandatory arbitration provisions in their charters to have declared effective their IPO registration statements. She notes that if the Staff were to recommend that the SEC prohibit another company from registering an offering because of a mandatory arbitration provision in the future, the Commissioner would want to understand the basis for such view. Despite various statements from Chair Clayton to the effect that the SEC is not actively considering its position on mandatory arbitration, Commissioner Peirce’s comments seem to suggest that mandatory arbitration provisions remain a topic of discussion.

Wednesday, October 17, 2018
1:00 p.m. – 2:00 p.m. EDT

During this session, Partners Michael L. Hermsen and Anna T. Pinedo will review the accommodations available to foreign private issuers, or non-U.S. domiciled companies, that choose to access the U.S. capital markets. We will discuss assessing a company’s status as a foreign private issuer, the initial registration and ongoing disclosure requirements for foreign private issuers, liability considerations, and related topics. The speakers also will address recent developments significant to foreign private issuers, including:

  • Staff guidance regarding the foreign private issuer definition;
  • Areas of focus for SEC comments in anticipation of upcoming 20-Fs and 40-Fs, including cyber security matters;
  • Disclosure simplification;
  • Exhibits, HTML and XBRL for foreign private issuers and IFRS filers; and
  • Areas of likely SEC focus in the coming months.

Wolters Kluwer will provide CLE credit. For more information, or to register for this session, please visit the event website.

On August 17, 2018, the SEC amended certain disclosure requirements that it considered to have become redundant, duplicative, overlapping, outdated or superseded, in light of other SEC disclosure requirements or changes in the information environment. The SEC has now published the final rules in the Federal Register. The amendments will go into effect on November 5, 2018.

The SEC final rules can be found here.

On August 17, 2018, the US Securities and Exchange Commission (SEC) adopted disclosure update and simplification amendments to certain of its disclosure requirements. These amendments become effective 30 days after publication in the Federal Register. (As of today, the amendments have not been published.)

One of the amendments requires the presentation of changes in shareholders’ equity in the interim financial statements (either in a separate statement or footnote) in quarterly reports on Form 10-Q. Recognizing that the anticipated effective date of the amendment may be close to filing dates for most filers’ quarterly reports, the staff of the SEC’s Division of Corporation Finance (Staff) issued compliance and disclosure interpretation 105.09 on September 25, 2018. While reiterating that the amendments apply to all filings made after the effective date, the Staff said that it “would not object if the filer’s first presentation of the changes in shareholders’ equity is included in its Form 10-Q for the quarter that begins after the effective date of the amendments.” (Emphasis added.) As an example, the Staff indicated that if the effective date of the amendments were October 25, a calendar-year filer could omit the changes in shareholders’ equity disclosure from its September 30, 2018 Form 10-Q. The Staff also stated that a June 30 fiscal year-end filer could omit this disclosure from its September 30, 2018 and December 31, 2018 Forms 10-Q but not from its March 31, 2019 Form 10-Q.

Additional interpretations of the amendments could be coming. Interested persons should continue to look for such developments as they revise their disclosures and procedures to comply with the revised requirements.

For further information on the disclosure simplification amendments, see our Legal Update, “Capital Markets Implications of Amendments to Simplify and Update SEC Disclosure Rules,” dated August 29, 2018.

Speaking at a session at the American Bar Association’s annual meeting, a representative of the Securities and Exchange Commission’s Division of Corporation Finance (Michael Seaman) provided guidance for attendees regarding areas of focus in the coming months.  After reviewing some of the Commission’s recent rulemaking initiatives, including the Concept Release regarding Rule 701 and Form S-8, the recent changes to Regulation S-K to address outdated, duplicative and other similar rules, and the proposed amendments to the disclosures required by Regulation S-X Rule 3-10 and Rule 3-16, Mr. Seaman commented on ongoing and upcoming priorities.  He noted that the staff is working on proposed rules that would address the statutory change that permits Exchange Act-reporting companies to undertake Regulation A offerings.  There appears to be significant interest on the part of smaller public companies in relying on the exemption.  Mr. Seaman cautioned that the exemption is not available to such companies until the Commission adopts final rules.  He noted that the staff continues its work on proposed changes to Industry Guide 3 for financial services companies.  Guide 3 requirements may be simplified in light of the disclosures required of regulated financial institutions as a result of Basel III and other standards, as well as disclosures otherwise already contained in financial statements and the accompanying notes.  Consistent with remarks made by other Commission representatives, Mr. Seaman noted that the staff also is working on a concept release related to private offering exemptions intended to harmonize conditions for such exemptions.  When asked whether there would be additional rulemaking in furtherance of the Commission’s disclosure-effectiveness initiative, Mr. Seaman noted that the staff continues to review other aspects of the Regulation S-K requirements, including those on which comment was sought in the Concept Release on Business and Financial Disclosure required by Regulation S-K.

As far as areas of staff comment, Mr. Seaman noted that the staff was reviewing issuer disclosure related to cyber breaches and cybersecurity and commenting on risks that were generic and did not address issuer-specific facts and circumstances, as well as on disclosures related to incidents of breaches.  He also noted that the staff was reviewing dispute-resolution provisions in governing documents that may have the effect of limiting investors’ rights, such as provisions requiring mandatory arbitration, waiver of jury trial provisions, provisions related to class-action waivers, and provisions requiring a minimum ownership threshold in order to bring certain claims.  In this regard, the staff was commenting on issuer disclosures related to the inclusion of such provisions in the governing documents with a focus on ensuring that such provisions are clearly explained and investors understand the risks associated with such provisions, including the limitations on remedies, as well as ensuring that issuers are addressing in their disclosures whether such provisions are enforceable and comply with the securities laws.

Mr. Seaman also mentioned a new initiative, led by the Chief Counsel’s office, with the support and involvement of other groups, to review all of the Compliance & Disclosure Interpretations for any required updates, as well as to eliminate any C&DIs that may no longer be relevant or applicable.  He encouraged practitioners to provide their views regarding any C&DIs that may be confusing or problematic, as well as any areas or topics that may be appropriate to address in new C&DIs.

In June 2018, the Securities and Exchange Commission adopted amendments to the definition of “smaller reporting company.”  Under the amendments a company with a public float of less than $250 million qualifies as an SRC.  A company with no public float or with a public float of less than $700 million will qualify as an SRC if it had annual revenues of less than $100 million during its most recently completed fiscal year.  The rules are effective as of September 10, 2018.