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August 2011 Archives

Advances in Technology May Prompt the SEC into Revising Securities' Registration Requirements

In November of 2009, two advertising executives, and longtime fans of Pabst Brewing Company ("PBR"), attempted to purchase the company. The advertising executives made offers for the company, but could not approach the $300 million asking price. In order to raise capital for the buyout, the advertising executive utilized "crowd funding." Crowd funding is the use of social media and the internet to organize a large group of individuals to achieve a common goal, in this instance, to raise capital for the purchase of a brewery. Accordingly, the advertising executives decided to solicit online pledges in exchange for a "certificates of ownership" and beer equal to the amount pledged. To that end, the advertising executives established the website buyabeercompany.com to facilitate and centralize their fundraising efforts. They also formed a Facebook page and Twitter account for buyabeercompany.com to help generate interest and publicity for the buyout. Shockingly, the two advertising executives ultimately received pledges of $200 million from over five million people. While the $200 million dollars was not enough to purchase PBR, it was enough to catch the attention of the Securities and Exchange Commission ("SEC"), who in June of this year issued a Cease and Desist Order[1] against the two advertising executives for violation of federal securities laws. Under the Securities Act of 1933, the offer or sale of securities is prohibited unless registered or exempt from registration.[2] The list of what constitutes a "security" for purposes of the Securities Act of 1933 is long, but its contours were fleshed out in the seminal Supreme Court case SEC v. Howey.[3]  Under Howey, a "security" is defined as an exchange of money with an expectation of profits arising from a common enterprise which depends solely on the efforts of a promoter or third party. Clearly, under Howey, any crowd funding arrangement (like that conducted for PBR) in which people are asked to contribute money in exchange for potential profits based on the work of others would be considered a security. Consequently, the attempt to raise money by soliciting millions of small pledges from people on Facebook or Twitter in exchange for a "certificate of ownership" was in direct violation of the Securities Act of 1933.  Likely given the amount of time, effort and cost associated with registering their "certificates of ownership," the advertising executives unsurprisingly ignored this requirement, and took their capital raising efforts directly to the people.[4] An alternative method of complying with federal securities laws may have been available if the advertising executives, and similarly situated crowd funders, would have used an exemption from the registration requirement, such as those afforded under Regulation D.  However, given the facts and circumstances surrounding the offering, it is doubtful as to whether they would have qualified for an exemption.  Current Regulatory Framework:  Rules 504, 505 and 506 under Regulation D of the Securities Act of 1933 are the most commonly used exemptions to avoid the registration requirement.  Summarily, Rule 504 provides an exemption for certain offerings not exceeding an aggregate of $1 million within a 12-month period.  Given the $300 million buyout price of the brewery and the amount of money that is commonly attempted to be raised by crowd funders, the $1 million cap of Rule 504 often renders this exemption unavailable. Similarly, Rule 505 oftentimes does not suit crowd funders' purposes because this exemption is capped at offerings not exceeding $5 million within a 12-month period and places a limit on the number of investors who are not "accredited investors."[5]  While Rule 506 does not place a cap on the amount of the offering or the number of accredited investors, such an offering is limited thirty five non-accredited investors who must also meet certain sophistication requirements.  Consequently, given the fact that over five million people provided funds to the advertising executives, this offering could not be exempted under Rule 506.  Moreover, given that Rules 504, 505 and 506 all prohibit general solicitation or advertising of the investment opportunity, attempts at exempting crowd funding efforts under these Rules is not available.  What is On the Horizon: Loosening the restrictions on entrepreneurs' ability to raise capital through crowd funding offers numerous benefits.  For instance, crowd funding allows entrepreneurs to quickly and easily reach investors who are interested in backing their product or services, and may spur the economy through the facilitation of small business formation.  Moreover, jobs are likely to be created as small businesses are born or grow through their ability to access capital through crowd funding.  For these reasons, Representative Darrell Issa, Chairman of the Committee on Oversight and Government Reform, and Mary Shapiro, Chairman of the SEC, have been corresponding on ways to address changes in the securities laws governing initial public offerings and capital formation and raising.[6]

SEC Whistleblower Program Now In Effect

With its new whistleblower program officially becoming effective on August 12, 2011, the SEC launched a new webpage for people to report violations of the federal securities laws and apply for a financial award.Prior to the enactment of the Dodd-Frank Act, the SEC only had authority to reward whistleblowers in insider trading cases. Now, the Dodd-Frank Act provides the SEC with the authority to pay financial rewards to whistleblowers who provide new and timely information about any securities law violation. Among other things, whistleblowers who provide original evidence of securities laws violations may be eligible to receive between 10% -30% of recovered funds if the information results in the recovery of at least $1 million.Under the newly implemented program, whistleblowers may be employees or outsiders of the entity that they provide relevant information on. If the whistleblower is an employee of the firm, the Dodd-Frank Act provides for anti-retaliation provisions to protect these employees from the possibility of employer reprisals.  In light of the fact that employees may be incentivized to circumvent internal reporting chains, investment advisers, private fund managers, broker-dealers and other entities subject to the SEC’s rules should consider the following tips to increase the likelihood that possible violations are reported early and internally:
  • Create an environment of compliance that begins with a tone at the top;
  • Continuously train employees on regulatory compliance;
  • Establish an anonymous reporting hotline;
  • Maintain the confidence of those who report possible violations; and
  • Consult with counsel to determine the advisability of self-reporting discovered violations.
For more information, please contact Brent Cunningham, Associate Attorney, at 619.298.2880 or at [email protected]

Massachusetts Adopts New Regulations Governing Use of Expert Networks

Beginning December 1st of this year hedge fund managers, private equity firms and investment advisers doing business in Massachusetts will need to have policies and procedures in place to address that state’s new regulations aimed at overseeing the use of expert network firms. Expert networks are intended to connect institutional investors, hedge funds, investment advisers and others with industry specialists and consultants, helping them gather data to make investment decisions.  The adoption of these regulations makes Massachusetts the first state in the Union to have rules overseeing these relationships.Under Massachusetts’ newly adopted regulation, investment advisers, hedge funds and other entities that make use of expert networks will be required to certify that the expert network will not, and does not supply confidential information as part of its services.  Entities that use expert networks will also be required to describe the confidentiality and non-disclosure arrangements that govern their relationship with the expert networks.The adoption of this new regulation is designed to thwart perceived abuses by hedge fund managers and investment advisers who gain and trade on inside information through the use of these expert networks.  Indeed, recent high profile insider trading cases have involved the misuse of expert networks.  For instance, Raj Rajaratnam, founder of the now defunct New York-based hedge fund Galleon Group, faces more than twenty years in prison for his recent conviction on insider trading charges that stemmed from his misuse of expert networks.While the new regulation may not deter those bent on gaining and trading on insider information, it does put these individuals on notice and may serve as a tool regulators will use to initiate enforcement proceedings.For more information, please contact Brent Cunningham, Associate Attorney, at 619.298.2880 or at [email protected].

Considerations for Structuring Finders Arrangements

Hedge funds, private equity funds, venture capital funds and other types of private funds commonly utilize third parties to promote their funds and raise capital from potential investors.  These third parties are commonly referred to as “finders.”  When entering into arrangements with finders, private fund managers should carefully consider the structure of this relationship, particularly if the finder is not a registered representative.  Increasingly, the SEC and FINRA are focusing on whether or not a finder is acting in the capacity of an unregistered broker.  Section 15 of the Securities Exchange Act of 1934, as amended, defines a "broker" as any person engaged in the business of effecting transactions in securities.  As the term “effecting transactions in securities” is open to interpretation, the SEC has added some clarity to this term through a myriad of SEC No-Action Letters and enforcement actions.  Factors the SEC uses to determine whether a finder is really acting as an unregistered broker include:
  • Whether the finder provided advice to potential investors regarding the merits of the investment;
  • Whether the finder played a material role in the negotiation of the terms of the investment;
  • Whether the finder has a history of involvement in the sale of securities; and
  • Whether the finder received transaction-related compensation based in whole or in part on the success or amount of the investment.
Finders play a critical role.  However, it is important to work closely with legal counsel to structure the arrangement to comply with these various regulatory considerations.For more information, please contact Brent Cunningham, Associate Attorney, at 619.298.2880 or at [email protected].
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