Securities Regulation

1. Securities Regulation Chapter 15

2. Security May be debt of certain form Note or bond that can be traded May be equity Most famous are common stocks traded on New York Stock Exchange Securities provide capital for business operations Securities represented by pieces of paper records in computers Represent value in something real Corporate Finance

3. Debt When bonds are sold, there is often an issue of 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 financing is 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

4. Securities Regulation • States began withblue 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

5. What Is A Security? • Merely calling it a security does not make it so • Have higher legal protection for 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

6. 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

7. Offering Securities to Investors • ‘33 Act requires full disclosure of all materialinformation on security, issuers, and intended use of money before sale to public. • Material information is all relevant information an investor would want to know: • background • executives • plan of operation

8. Registration Statement • Prospectus (SEC Schedule A) • 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

9. 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 order to 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) Registration Statement

10. 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

11. Well-Known Seasoned Issuers (WKSIs) • 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.

12. 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 less than 500 shareholders not openly traded Regulation of Securities Trading

13. “It Seems Too Good To Be True” • Two men were arrested in Melbourne, Australia. • Scamming four businesses owners out of $160,000 (Australian). • Amazing product the promoters had to offer was a secret chemical that doubled money. • A $100 bill soaked overnight in the chemical would come out as two $100 bills! • Apparently the businessmen failed to notice that the doubling occurred by a sleight-of-hand, not the magic formula of baby powder, bleach, and hair spray.

14. 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

15. Investors often have 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 Rule 10b-5 Basis for Securities Fraud; used more than other Act sections Unlawful to: employ device, scheme to defraud make untrue statement of material fact engage in act or practice which operates a fraud in connection with purchase/sale of security Securities Fraud

16. 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

17. 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. Safe Harbor and Federal Exclusivity

18. Slayton v. American Express Company • A group of investors bought American Express (AE) stock between 1999 and 2001 . • Sued the company & executives for securities fraud for misleading investors. • Contended that AE over-invested in high-yield debt (junk bonds) • Resulting in loss of hundreds of millions of dollars in 2000 and 2001. • Investors’ claim was largely based on 10Q report AE filed with SEC in May 2001 . • Report stated that while it lost $182 million from its high-yield debt investment in the 1st Quarter of 2001, future losses expected lower. • Company later realized that losses were larger than report said • In July AE announced a further $826 million loss due to write-downs of the junk bonds. • Caused AE stock to fall. (Continued)

19. Slayton v. American Express Company, cont. • Plaintiffs claimed May filing was misleading and AE knew or should have known that losses were worse than reported. • District court dismissed complaint; investors appealed. • HELD: Affirmed. American Express wins. • Not liable under Private Securities Litigation Reform Act IF • False or misleading statement is “identified as a forward-looking statement” and has precautionary statement re: important factors that could cause result to be different. • Form 10-Q warned that forward-looking statements were “subject to risks and uncertainties”. • AE used words like “believe”, “expect”, “anticipate”, “aim”, etc. • Plaintiffs claim that “forward-Looking Statement” should be specifically marked or labeled as “forward-looking”. • SEC disagreed. Statements such as “we expect” and we believe” designate statement as forward-looking. Don’t need separate section. Nor does statute say must be a separate section labeled “forward-looking”.

20. Sarbanes-Oxley Act (SOX) Requirements • CEO and CFO of companies with publicly traded stock must personally certify that financial reports comply with SEC rules. • Knowing misstatements have 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.

21. “Pay Is OK, But the Food Is Terrible” • Randall Hutchens in federal prison for trying to cheat the IRS out of $300,000. • As former investment adviser, he spent time in jail filing shareholder-fraud cases against companies in California Small Claims Court (damages limited to $5000). • 17 companies paid settlements from $500-5000 instead of contesting claims, and Hutchens collected over $30,000. • His claims were bogus, especially since he never actually owned the stock involved. • But companies settled instead of having the cost of hiring a California attorney look into securities fraud claims based on misinformation. • Prison provided Hutchens all the material he needed. • His only expenses were the small court filing fees.

22. 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.Compares U.S. & European nations re: impact of Sarbanes-Oxley Act. U.S. competitive position impacted more negatively than London. Firms often choose London’s stock exchange and junior market over New York.

23. U.S. Securities and Exchange Commission v. Ginsburg • Scott Ginsburg, CEO of Evergreen Media, owned radio stations; met with CEO of EZ Communication to discuss “strategic alternatives”. • Two days later 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 the phone calls. • 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)

24. U.S. Securities and Exchange Commission v. Ginsburg, cont. • Jury found he violated rule against insider trading; $1 million in penalties. • Trial court set aside verdict, saying 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.

25. Insider Trading Sanctions Act of 1984 • Gives SEC a statutory basis for prosecuting insider trading. • The law was strengthened by the Insider Trading and Securities Fraud Enforcement Act. • Increased the maximum fine to $1 million per action and set maximum prison term to 10 years per violation. Corporate fines were raised to $2.5 million /violation. • See Issue Spotter: “Can You Exploit the Gossip?”

26. Investment Company Act • Primarily in the business of investing or trading securities • Three types of Investment Companies • 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 • open-end companyknown as amutual fund • no specific number of shares, expand as long as new investments • invested in portfolio of securities • two kinds of mutual funds:loadandno-load • 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

27. Investment Advisers Act (IAA) • 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” See European Approaches to Insider Trading”: Compared to U.S., European nations have little or no prosecution of inside traders

28. “The Fall of a Blood Brother” • R. Allen Stanford ran a Ponzi scheme out of the country of Antigua for a decade. • Investors lost $7 billion. • Regulators in Antigua had asserted that Stanford's operation was fine. • Scheme collapsed. • Stanford’s #2 executive said that Stanford and Antigua’s chief bank regulator had taken an actual “blood oath” of loyalty to each other. • While there was no blood oath with U.S. regulators, the SEC was offered evidence several times over the years that scam was going on. • BUT no action was taken. • After Stanford’s operation was shut down – his private jet was taken away. He was forced to fly commercial. • He complained that before getting on a flight, “They make you take your shoes off . . . it’s terrible.”

29. 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 Investment Advisers Act (IAA) Regulates Securities Professionals

30. 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 Handles most disputes Helps oversee brokerage firms and employees Self-Regulation of Securities Markets SEC has power to monitor Includes stock exchanges such as NYSE, AMEX, NASDAQ 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 Stock Market Regulation

31. 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.

32. The Consumer Financial Protection Bureau • 2010 Dodd-Frank Act • Established new agency: Consumer Financial Protection Bureau (CFPB) within the Federal Reserve • Still “getting up to speed” • Attorneys-general have authority to enforce Bureau rules • Instructions from Congress to the CFPB • Crack down on financial scams/gimmicks aimed at ordinary consumers and debtors • Ensure terms of financial documents are transparent & can be understood by a reasonable consumer • Focus on practice of non-bank institutes, i.e. payday lenders, that seem unfair • Look at existing rules i.e. those of the Equal Credit Opportunity Act, and make sure rules are not in conflict with each other

33. Dodd-Frank Wall Street Reform and Consumer Protection Act • Dodd-Frank Wall Street Reform Act (2010). • Established new regulatory authority in consumer credit area. • Focuses on financial markets and oversight in large-scale financial problems. • 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.

34. Securities Scams • Fraud is common • Revealed during market meltdown in 2007. • New restrictions were imposed by the Dodd Frank Act. • Large “Ponzi scheme” was operated by Bernard Madoff. • Operation ran for more than 20 years. • Total losses appeared to be around $20 billion. • Other smaller investment promoters offer high returns to temp investors to “beat the market”. • Litigation is a mix of securities law violations and common law fraud. See Test Yourself, p. 655

35. Latta v. Rainey • From 2001 through 2004, Mobile Billboards of America (MBA) sold mobile billboard “investments” in U.S. • Investors given “offering circular” claimed to comply with federal and state regulations. • Each billboard unit was $20,000. • Owner leased the unit for 7 years to Outdoor Media Industries (OMI), a shell company owned/operated by MBA’s principals. • Investors would receive average return of 13.49%/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 Caroline) said Billboards was a “safe company – “absolutely no risk”. • Latta invested $100,000. (Continued)

36. Latta v. Rainey, cont. • 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. • Trail 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