Posts Tagged ‘SEC’

May 15, 2015 – On April 13, 2015 Governor Hickenlooper of Colorado signed the Colorado Crowdfunding Act. The Crowdfunding Act becomes law on August 5, 2015, and on May 7, 2015 Colorado Securities Commissioner Gerald Rome said that he anticipates the regulations will be final by that date so that Colorado businesses will be able to raise money in a crowdfunded offering beginning August 5, 2015. Under the Crowdfunding Act, offers can be made solely in Colorado, under the federal intrastate offering exemption. This means that the offers may be made only to Colorado residents, and only Colorado residents may invest. In addition, the offering must comply with the federal intrastate exemption, which means, among other things, ownership of the stock must not leave Colorado for 9-months after it is purchased.

I discussed the requirements for crowdfund offerings in Part 1 of this article; this Part 2 discusses the role and requirements for “intermediaries” who provide the Internet website for offerings.

Before the JOBS Act was passed three years ago, “crowdfunding” in the U.S. comprised only donations, or pre-sale purchase of goods or services, through websites such as gofundme, KickStarter, and indiegogo, and not the sale of securities. The JOBS Act required the SEC to establish a procedure for small securities offerings to a large number of investors, and in 2013 the SEC published proposed “crowd funding” rules, but they have not yet been approved and adopted. As a result states have begun to adopt their own laws and regulations to enable businesses to raise money by offering securities to “the crowd,” and now Colorado has followed suit.

In a private placement, the issuer may, and often does, sell its securities directly to investors. However, the issuer cannot sell its securities directly to the public in a crowdfund offering, for example, through its own website. In Colorado securities can be sold in a crowdfund offering by a registered broker-dealer, a registered sales representative (stockbroker) or an online “intermediary.”

An online intermediary is a website that is not a broker-dealer or stockbroker, and does not offer securities except for crowdfund offerings. Before offering online intermediary services, the intermediary must:

  1. File a statement or form with the Colorado Division of Securities disclosing the following:
    • identity, address, contact information, and names of the officers, directors, managers, or other persons who control the company;
    • a consent to service of process; and
    • an undertaking to provide investors the offering information required by the Crowdfunding Act.
  2. Comply with reporting and filing rules of the Securities Division. The rules have not been published yet, but the Crowdfunding Act says the Securities Commissioner may require intermediaries to file financial information, make and retain specified records for 5 years, and establish written supervisory procedures to prevent and detect violations of the Crowdfunding Act and rules. I anticipate the rules will include all of these requirements
  3. Maintain records of all its offers, which must be available to the Securities Division on request and subject to division examination at any time.
  4. Not have any ownership or financial interest in, or be affiliated with, any issuer it conducts offerings for.

Intermediaries cannot charge commissions on securities sold. Under both federal and state securities laws, only registered and regulated persons such as broker-dealers and stockbrokers can be paid commissions. Since intermediaries are not registered, they cannot be paid based on the amount of securities sold. Intermediaries have two fee options, and they can use one or a combination. They may charge (1) a fixed fee for each offering, or (2) a variable amount based on the length of time the securities are offered. As a result, intermediaries will have several fee options. For example:

• a flat fee unless the offering is not sold within a number of weeks, and then an additional fee for every week the offering remains open;
• or a fee for every week the offering remains open, but not less than a fixed amount, which will guaranty the intermediary a minimum fee even for offerings that sell out very quickly.

No Advertising?

An intermediary cannot promote a crowdfund offering – the Act says: “An on-line intermediary shall not identify, promote, or otherwise refer to any individual security offering by it in any advertising for or on behalf of the on-line intermediary.”

An issuer cannot promote its crowd fund offering either, because issuers are restricted to distributing a notice that can only state the company is conducting an offering, the name of the intermediary, and a link to the intermediary’s website.

Non-securities crowdfunding offers, like the recently extremely successful effort by Alan Tudyk and Nathan Fillion to raise funding for the series Con Man on indiegogo, can use social media to publicize the opportunity. Tudyk and Fillion used their extensive Twitter and facebook followers to gain momentum and attention for the Con Man fund raise. Companies selling securities in a crowd funded offering through an intermediary will not be able to undertake any similar advertising, promotion, or sales campaigns, and will instead have to rely on investors who follow intermediaries looking for investment opportunities.

Although the Colorado Crowdfunding Act has several advantages over the proposed SEC rules, it is still a very expensive option when compared to a traditional private placement, and only time will tell if it presents a viable funding option for companies who cannot raise the needed funds through traditional private placements.


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Law Week Colorado, February 18, 2105



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Denver CO, April 22, 2015 – In the last year I have seen proposals for clients to go public through a reverse merger with a public operating company that was really a shell or “blank-check” company. In both cases during the listing process the SEC commented that the registering company appeared not to have any real assets or operations, appeared to be a shell or blank-check company, and the SEC asked whether the company intended to do a reverse merger in the near future. The companies responded that they did too have a real business (they didn’t), and they had no intention of merging with any company in the future. Almost as soon as the company was registered they were trying to sell a reverse merger / back-door-listing to my client.

A “shell company” is prohibited from taking advantage of many favorable SEC rules for three years after it is no longer a shell, and has extensive 8-K filing requirements. In addition, “blank check” companies are subject to restrictive escrow and use of funds requirements, along with clear risk and disclosure obligations. I advised my client that it would likely bear substantial costs from the previous founders’ lies to the SEC, since the original promoters would be cashed-out and long gone when it came time to pay the piper. We walked away.

Last week the SEC charged 10 people with fraud for lying to the SEC about the shell or “blank-check” status of registered companies bound for reverse mergers.

The SEC announced the charges in a press release on April 16, 2015, stating it brought fraud charges “against 10 individuals involved in a scheme to offer and sell penny stock in undisclosed “blank check” companies bound for reverse mergers while misrepresenting to the public that they were promising startups with business plans. Blank check companies generally have no operations and no value other than their status as a registered entity, which makes them attractive targets for unscrupulous individuals seeking reverse mergers with clean shells ripe for pump-and-dump schemes.”

According to the SEC, the group created undisclosed blank check companies, installed figurehead officers, falsely claimed in registration statements and other SEC filings that the companies were pursuing real business ventures, and concealed from the public that the sole purpose of the companies was entering into reverse mergers so they could profit from the sales.

The SEC is seeking disgorgement of approximately $ 6 million in ill-gotten gains plus prejudgment interest, financial penalties, and permanent injunctions as well as officer-and-director bars and penny stock bars.

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The U.S. Securities and Exchange Commission has allowed a marijuana company to register its shares. Terra Tech Corp of Irvine, California is a Nevada corporation that primarily manufactures and sells hydroponic agriculture equipment and supplies. According to The Cannabist, hydroponics is booming: “Supplying the lighting, nutrient and water needs of … plants has resulted in huge growth in hydroponics stores and grow operation supply retailers. According to a market research report published by IBISWorld, the hydroponic equipment retail industry has grown by 7.2 percent per year nationwide since 2009, with California and Colorado growing at a whopping 32 percent.”

Terra Tech stock trades on the OTCBB under the symbol TRTC.

According to Terra Tech’s Prospectus and recently allowed Form S-1 Registration Statement,

“[Terra Tech] recently formed three majority-owned subsidiaries for the purposes of cultivation or production of medical marijuana and/or operation of dispensary facilities in various locations in Nevada upon obtaining the necessary government approvals and permits, as to which there can be no assurance. Each subsidiary was formed with different investors, thus necessitating the need for multiple entities with different strategic partners and advisory board members.  In addition, we anticipate each subsidiary will service a different geographical market in Nevada.  Effectuation of the proposed business of each of (i) MediFarm, LLC (a Nevada limited liability company (“MediFarm”), (ii) MediFarm I, LLC, a Nevada limited liability company (“MediFarm I”), and (iii) MediFarm II, LLC, a Nevada limited liability company (“MediFarm II”) is dependent upon the continued legislative authorization of medical marijuana at the state level. We expect to allocate future business opportunities among MediFarm, MediFarm I and MediFarm II based on the locations of such opportunities.”

Thus, Terra Tech is not yet in the marijuana cultivation and sales business, but will commence that business if and when it receives the necessary licenses in Nevada. This appears to be the first SEC allowance of registration of shares of a cannabis grower and seller, albeit one not yet in production.

In November 2014 Terra Tech filed a registration statement for the resale of stock owned by one of its investors. The Wall Street Journal LawBlog reports that the SEC recently allowed the registration statement to go effective without action, which means it becomes effective 20-days after the SEC approves the disclosures in the registration statement. Typically, an issuer will request, and the SEC will grant, acceleration of the effective date to allow the issuer to immediately sell its shares. The SEC refused to grant Terra Tech’s request for acceleration. The article at the WSJLawBlog includes a good discussion of the significance to issuers of not receiving accelerated effectiveness – it makes it difficult if not impossible to do an underwritten public offering. However, that was not an issue in this case because Terra Tech was registering for resale stock acquired earlier by an institutional investor, Dominion Capital LLC, who purchased convertible notes and warrants from Terra Tech. Under the terms of the notes and warrant, Dominion had a right to require that stock be registered for resale in the future (registration rights). Therefore, Terra Tech was not registering its own stock for sale, and will not directly receive any of the proceeds from the sale of the registered stock for use in the marijuana business. It will be interesting to see whether the SEC allows a registration statement for direct sale to the public by a marijuana company.

What About Colorado?

Terra Tech is a Nevada corporation that plans to conduct its marijuana business in Nevada through Nevada subsidiaries. Currently, Colorado law prohibits ownership or beneficial financial interest in a Colorado licensed cannabis business, by any person who is not a Colorado resident as defined under Colorado marijuana regulations. To qualify, the owners must submit exhaustive and detailed identification information, including fingerprints, to the Colorado Marijuana Enforcement Division, and be approved for ownership by the MED. Under current Colorado law, there would be no reason for a Colorado licensed marijuana company to register its shares with SEC, unless it can also control the sale of those shares solely to persons who qualify to own a financial interest in a licensed company. Failure to do so would cause the loss of its license. Colorado’s regulatory scheme precludes registration and public trading of shares in a marijuana company on any exchange or bulletin board, since it is not possible to limit ownership to qualified Colorado residents. Only time will tell if allowance and registration by the SEC of stock in marijuana companies will provide some incentive for Colorado regulators to loosen the ownership restrictions on licensed Colorado marijuana companies, long term.

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According to the SEC, in 2012 companies raised $173 billion through direct private placements, and pooled funds raised $725 billion. These offerings were conducted without public advertising. After September 23, 2013 companies and hedge funds offering their securities in private placements can now advertise the offering to the public, so long as (1) all purchasers are “accredited investors” and (2) they take “reasonable steps” to verify that each purchaser is “accredited.” However, the new rules also increase the risk and likelihood of losing your private placement exemption, and should be used with caution.


The basic foundation of securities laws in the United States is that every offering and sale of a security must be either registered with the SEC and applicable state commissions, or qualify for an exemption from registration. The primary exemption from registration is §4(2) of the Securities Act of 1933 (“Securities Act”), which exempts “transactions by an issuer not involving any public offering.” In the decades after 1933, court rulings and SEC guidance added a confusing and formidable crazy-quilt of rules about what made a “private placement” under §4(2). To address this problem, in 1983 the SEC issued Regulation D; private placements that meet one of the three Reg D requirements are deemed exempt from registration, and thus Reg D provides issuers with a “safe harbor” so they know their private placement is exempt, instead of having to deal with the uncertainty of §4(2).

The details of Reg D offerings are beyond the scope of this article, but nearly all private placements by issuers are conducted under Rule 506 of Reg D, because there is no limit on the amount raised or the number of accredited investors (now known as Rule 506(b)). There are several specific requirements that must be met to comply with a Reg D exemption, and Form D must be filed with the SEC and the relevant state commissions – more on that later. But until now, it was a requirement of every Reg D private placement that it not involve any public offering.

That means no advertising, no Internet webpages about your offering, no hosted breakfast meetings at the retirement home about an “investment opportunity,” no facebook postings, no windshield flyers at the mall – until now.

The JOBS Act

Section 201(a) of The Jumpstart Our Business Startups Act, (the “JOBS Act”)(April 5, 2012) directed the SEC to issue rules allowing “general solicitation” in connection with a private placement. Earlier this year the SEC issued new Rule 506(c), which went into effect on September 23, 2013 and provides a new “safe harbor” exemption from registration for securities offerings marketed using general advertising if:

  • all investors are “accredited investors” at the time of investment, and
  • the issuer takes reasonable steps to verify that each purchaser is an accredited investor.

How It Works

New Rule 506(c) under Regulation D allows issuers and their agents to advertise and offer to the public their securities, without having to register the offering or the securities under the Securities Act, if (1) all investors are “accredited investors” at the time of investment, (2) the issuer takes reasonable steps to verify that each purchaser is an accredited investor, and (3) they otherwise comply with Reg D. Note that the definition of “accredited investor” under Reg D has not changed, which means that an “accredited investor” includes persons that the issuer reasonably believes to be an accredited investor. Therefore, the issuer will not lose the exemption if an unaccredited investor sneaks in, so long as the issuer reasonably believed the investor was accredited.

Securities issued under new Rule 506(c) will still be “covered securities” under federal securities laws, and therefore preempt the “Blue Sky” laws of the 50-states; state registration will not be necessary, but the issuer must still file Form D with the SEC and the states where securities are sold. Form D has been amended, and the issuer must now check-the-box to state whether the offering is conducted under new Rule 506(c), or traditional Rule 506(b) with no public offering.

One of the key compliance requirements will be taking “reasonable steps to verify each purchaser is an accredited investor.” The SEC has provided guidance. First, the traditional method of requiring investors to “self-certify” that they are accredited by checking a box on their stock purchase agreement will not be acceptable for public offerings under new Rule 506(c). Second, rather than a “bright line” test, the SEC has adopted a “principals-based approach” to whether the issuer takes reasonable steps – a “common sense” test, depending on the facts of each offering. At one end of the spectrum, if the issuer sells its shares to JP Morgan Chase, Bank of America and Goldman Sachs, very little effort will be required to establish that the purchasers are “accredited,” it is readily confirmed in the public record. On the other end of the spectrum, verifying the accredited status of natural persons will require some effort (and record-keeping).

Natural persons may be accredited based on (1) income (alone or with spouse), or (2) their net worth. The SEC provided a few safe-harbor methods for satisfying that investors are “accredited,” which are not exclusive.


An issuer will be deemed to have satisfied the verification requirement for the income of a natural person by reviewing the investor’s IRS income forms for the two most recent years, such as Form W-2, Schedule K-1, Form 1099, and Form 1040. The issuer must also get a written representation from the investor that he expects to reach the required income level again in the current year. If the income requirement is based on joint income with the investor’s spouse, the IRS forms and representation must pertain to both the investor and spouse.

Net Worth

An issuer will be deemed to have satisfied the verification requirement for the net worth of a natural person by reviewing one or more of the investor’s bank statements, brokerage statements, securities account statements, certificates of deposit, tax assessments and appraisal reports for assets, and a consumer credit report for liabilities from one of Experian, Equifax, or Trans Union. The investor’s written representations described above are required.

Third-Party Verification

An issuer will be deemed to have satisfied the verification requirement by getting a written confirmation from the investor’s registered securities broker or investment adviser, CPA or licensed attorney.

Bad-Actor Disqualifications

Concurrent with issuing the new Rule 506(c), the SEC also issued the long awaited “Bad Actor” disqualification rules, disqualifying felons and other “bad actors” from participating in Rule 506 offerings. The issuer will lose its private placement exemption and be subject to rescission (discussed below) if the issuer, a director or officer, a 20% owner, a promoter, or a finder has had a “disqualifying event” such as a criminal conviction, a securities related injunction or restraining order, a banking regulator order, or any of a number of other disqualifying events. These will be discussed in more detail in a companion article.

The Big Risk – Claims for Rescission, Damages and Enforcement Action

The penalty for violating the registration or antifraud provisions of the securities laws is that, at a minimum, investors can rescind their purchase and receive a refund of their investment.  Some states, such as Colorado, provide for attorney’s fees in these types of cases. Additionally, the state and federal regulatory agencies have enforcement rights and, in extreme and aggravated circumstances, may fine and enforce criminal penalties.

The federal antifraud provisions arise primarily from Section 10(b) and rule 10b-5 of the Securities Exchange Act of 1934 (“Exchange Act”), as well as the lesser known Section 12(2) of the Securities Act. States have similar or identical antifraud provisions in their “Blue Sky” laws. Failure to comply with these provisions can result in civil liabilities (i.e., money damages). The liability can be, and often is, personal as to corporate officers, directors, principal shareholders and promoters. These antifraud laws prohibit any person in connection with the purchase or sale of any security from misrepresenting or omitting a material fact or engaging in any act or practice that constitutes a “fraud” or deceit upon any other person. Fraud, for securities law purposes, is much broader than the average person thinks of “fraud”. It includes omissions in disclosure (sometimes even unintentional ones) rather than just deliberate misrepresentations. Therefore, regardless of whether you intend to defraud an investor, if you fail to disclose a material fact, you may be liable.

If an issuer loses its exemption, or, fails to disclose important facts or makes mistakes in disclosures, it is at risk for claims by investors seeking to get their money back, and the directors and officers who participated in the offering may be personally liable. None of the antifraud damages or rescission rights were removed by these new rules.

 Risk #1 – Lose The Exemption, No Fall-Back Exemption

Lawyers commonly help their clients design and conduct private placements so that they comply with both old Rule 506 of Reg D (now Rule 506(b)), and §4(2) of the Securities Act. Rule 506 has a number of specific requirements that, if not met, will cause you to lose the exemption. For example, it is not uncommon for an issuer to restrict its offering to accredited investors, thereby decreasing its disclosure obligations, but then decided to let in Uncle John and Aunt Jane, who are not accredited. Since it hasn’t met the disclosure obligations for non-accredited investors required by Rule 506, the issuer has lost the benefit of that exemption. However, if the placement also complied with the §4(2) requirements, and Uncle John and Aunt Jane meet the “sophisticated investor” requirements of §4(2), the issuer has not lost its private placement exemption – the offering is still exempt.

But, if the offering includes general solicitation and advertising to the public under new Rule 506(c), there is no fallback exemption. Remember, the §4(2) registration exemption applies only to offerings “not involving any public offering,” and therefore will not be available as a fallback if you fail to meet the formal requirements of new Rule 506(c). A private placement with public advertising under new Rule 506(c) is all-or-nothing – you are on the trapeze without a net.

Risk #2 – Commit Securities “Fraud”

“Oops, we forgot to mention, that one guy is suing us about that one thing!”

“Did we tell the investors about that note coming due next year?”

Generally speaking, liability for securities fraud arises when the investor makes his investment decision. While there is no specific disclosure requirement under Rule 506 for offerings made only to accredited investors, without a disclosure document like a private placement memorandum or offering circular, the issuer will be in a tough spot if an investor claims securities fraud, which will be all the more difficult if the offering was advertised. First, a disgruntled investor could claim that he decided to invest based on the public advertising that he saw, before he even saw any investment documents – a risk that did not exist before. An issuer would have little evidence to defend that claim without a robust offering disclosure document with comprehensive risk factor disclosures, and a well-controlled investment acceptance procedure.

Second, securities “fraud” includes the failure to disclose a material fact, which is a fact that a reasonable investor would consider important to an investment decision. The courts have consistently held that generic or “blanket” risk disclosures, such as “this investment is risky and you could lose all your money,” are not sufficient to protect issuers from liability for securities fraud. Fact and risk disclosures must be well considered and specific to each issuer and each offering. In the author’s opinion, public advertising of private offerings will increase the already considerable tension between an issuer’s desire to make its stock attractive, and the lawyer’s desire to disclose all “bad facts” and potential risks. Absent the regulatory scheme of SEC review and comment for public offerings, and specific and very detailed disclosure rules, issuers making public offerings of private placements under new Rule 506(c) may “sales pitch” their stock, and pay the price for inaccurate and incomplete advertisements and solicitations at a later date.

Risk #3 – Lose the Broker-Dealer Exemption

In addition to the registration exemption, a private placement must also comply with the broker-dealer registration or exemption requirements of the Exchange Act. That is, securities may not be sold in the United States except by a person registered as a broker-dealer (or their agents), unless an exemption applies – the persons selling the securities must be registered or exempt. The “issuer exemption” is most commonly used for a private placement. The issuer exemption allows the directors and officers of a company to sell its securities without registering (1) so long as they do not sell more often than once every 12 months, (2) the selling persons are officers, directors, or full-time employees who perform substantial duties for the Company other than selling these securities, and (3) the selling persons are not paid compensation for their sales efforts – they can continue to receive their normal compensation, but no commissions or bonuses for selling the stock. Issuers must be mindful that these rules still apply, even with a publicly advertised private placement. If advertising an offering generates excessive calls and inquiries to the company, the company must be very careful that the persons taking the calls understand their roles and limitations in the context of the broker-dealer exemption, and don’t cause the issuer to lose its “issuer exemption.”

Risk #4 – Hedge Funds May Get Special Attention

In addition to the registration exemption and the broker-dealer exemption, private pooled investment funds, such as hedge funds, private equity funds and venture capital must, must be registered as an investment company under the Investment Company Act of 1940, unless an exemption applies. Most private funds rely on one of two exemptions from the 1940 Act, both of which are not available if they make a public offering of their securities. Because the new rules allowing general solicitation would be of no value to private funds if advertising caused them to lose their 1940 Act registration exemption, the SEC has determined that private funds can make public offerings under Rule 506(c) without losing their 1940 Act registration exemption. Specifically, the SEC ruled that since the JOBS Act provided that offers and sales under new Rule 506(c) shall not be deemed public offerings “under the Federal securities laws,” and the 1940 Act is a “Federal securities law,” then, offerings by private funds under Rule 506(c) shall not be deemed public offerings.

However, the SEC indicated it may be paying particular attention to advertising and disclosures by private funds. Investment advisers to private funds are subject to additional rules under the Advisers Act, and in its issuing release the SEC said “we intend to employ all of the broad authority Congress provided us ….. and direct it at adviser conduct” affecting investors in private funds. The SEC provided this pointed reminder: “Recently, for example, we have brought enforcement actions against private funds advisers and others for material misrepresentations to investors and prospective investors regarding fund performance, strategy, and investment, among other things.” It is probable that the SEC will be carefully scrutinizing advertising and sales materials of private funds for potential misrepresentations.

The Early Fallout

The SEC, and particularly state securities regulators, did not support allowing “public advertising of private placements” (and yes, that is a direct contradiction in terms – a fact not lost on the SEC). However, the JOBS Act required this rule-making, and it does not come without a cost. First, the SEC finally issued the “Bad Actor” rules, prohibiting persons with a relevant bad history from participating. That will be discussed in a different article. At the same time, the SEC issued new proposed rules regarding Form D and filing requirements. Until now, Form D has been a mere formality and an information gathering tool for the SEC. Failure to timely file Form D had little or no real consequences. The SEC is proposing to add real enforcement and penalties behind the Form D filing requirement, and to require issuers making public offerings under new Rule 506(c) to file their offering materials with the SEC.  While these new Form D and reporting requirements are only proposed for comment at this time, and the final regulations remain to be seen, it is clear that the SEC intends to keep a close eye on issuers using advertising for their private placements. State securities commissions will be doing the same.

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The Securities and Exchange Commission announced today that companies can use social media outlets like Facebook and Twitter to make news announcement in compliance with Regulation FD (Fair Disclosure), if investors have previously been told which social media the company will be using, and who’s feed to monitor. Regulation FD requires companies to distribute important news in a manner designed to get that information out to the general public, so that all investors have the ability to get important news at the same time. Today the SEC confirmed that social media can meet that requirement, if certain conditions are met.

The SEC commenced an investigation last year after Netflix CEO Reed Hastings posted on his personal Facebook page on July 3, 2012 that Netflix’s monthly online viewing for June 2012 had exceeded one billion hours for the first time. Netflix did not report that information to investors through a press release or Form 8-K filing, and a Netflix press release later that day did not include the information. The announcement represented a nearly 50% increase in streaming hours from Netflix’s January 25, 2012 report, and was clearly important news to the market. Hastings and Netflix had not previously used Facebook to announce company metrics, and they had never told investors to watch Hastings’ personal Facebook page for Netflix news. Netflix’s stock price increased from $70.45 at the time of the post, to $81.72 at the close of the following trading day.

According to the SEC press release: “The SEC did not initiate an enforcement action or allege wrongdoing by Hastings or Netflix. Recognizing that there has been market uncertainty about the application of Regulation FD to social media, the SEC issued the report of investigation pursuant to Section 21(a) of the Securities Exchange Act of 1934.”

The SEC’s report of investigation, available here, confirms that Regulation FD applies to social media used by public companies the same way it applies to company websites. As a result, reporting issuers cannot use social media as the sole method to report material, non-public information, unless the issuer has previously notified investors and the public to look to a specific site, page or feed for that type of information. Failure to comply could constitute selective disclosure and a violation of Regulation FD.

In particular, the report of investigation notes that the personal social media site of an individual corporate officer would not ordinarily be assumed to be a method  “reasonably designed to provide broad, non-exclusionary distribution of the information to the public” as required by Regulation FD, even if the officer is a business celebrity and has a large number of subscribers, friends or contacts.  “Personal social media sites of individuals employed by a public company would not ordinarily be assumed to be channels through which the company would disclose material corporate information”, and may not be used for that purpose unless the public is given advance notice that the site may be used to distribute company information.



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Last year the SEC announced it was adopting new procedures to encourage greater cooperation in its enforcement investigations, including the use of cooperation agreements, non-prosecution agreements and deferred prosecution agreements. Non-prosecution agreements and deferred prosecution agreements are typically used in criminal proceedings to encourage cooperation by important witnesses and provide fair and specific treatment of cooperating witnesses.  To understand their use by the SEC it is helpful to understand how these tools developed under federal practice.

The Department of Justice has used these agreements for years in corporate fraud cases.  The infamous “Thompson Memorandum”, written by Larry Thompson of the DOJ in 2003 to help federal prosecutors decide whether to charge a company with criminal offenses, required that a company must

  1. turn over materials from internal investigations,
  2. waive attorney-client privilege, and
  3. not provide targeted executives with company-paid lawyers,

before the company could claim credit for cooperating with the DOJ.   In other words, a company might provide extensive cooperation to the DOJ, but would not get any credit for that cooperation unless it expressly gave up its rights and breached its indemnification contracts.  Nearly every public company has indemnification agreements with its directors and officers, and indemnification is provided in the corporation statutes of Delaware, Colorado, and most other states. While eviscerating the constitutional rights to counsel and against self-incrimination, and the statutory right and contractual obligation to indemnification, the Thompson Memo also provided for the use of non-prosecution agreements for companies that waived their constitutional rights.

The Thompson Memorandum was replaced in December 2006 by the more reasonable “McNulty Memorandum”, which provided some relief from the most offensive portions of the Thompson Memorandum by requiring prosecutors to go through certain procedural requirements and obtain approval from senior supervisors before demanding a waiver of the attorney-client privilege.

The McNulty Memorandum was revised in 2008 (the “Filip Memo”) to prohibit the Department of Justice from coercing companies to breach their indemnification agreements with their directors and officers, to allow credit for cooperation to companies that do not waive the attorney-client privilege or do not disclose attorney-client work product, and to prohibit prosecutors from demanding attorney-client communications or attorney work product.

In contrast to the Department of Justice, the SEC does not have criminal enforcement powers, only civil enforcement powers, and must refer criminal cases to the Department of Justice.  However, over the years the SEC has sought greater cooperation from companies and people under SEC civil investigation.  For example, the SEC’s equivalent of the Thompson/McNulty/Filip Memorandums is the 2001 “Seaboard Report” describing the criteria it will consider in determining whether, or how much, credit it will give to companies who self-police, self-report, take corrective action or cooperate with the SEC.  Never mind that the “Seaboard Report” is neither about “Seaboard” nor a “report”, it stated that cooperation can result in reduced charges, lighter sanctions or mitigating language in settlements.

Despite the SEC’s more reasonable approach to the rights of companies under investigation, the Seaboard Report, and the SEC’s approach to giving credit for cooperation, were vague, and often applied after-the-fact.  In many cases, a company never really knows where it stands with the SEC, and whether it is actually receiving credit for cooperation, until after the investigation is complete.  While the Justice Department’s rules were originally offensive, at least a defendant signing a non-prosecution or deferral agreement knows exactly what to do, and exactly what treatment it will receive in return for cooperation.

To encourage the type of cooperation the SEC wants, it needs to provide the same type of certainty and fairness to potential witnesses as the DOJ, and so last year the SEC adopted new procedures for rewarding cooperation.

The SEC entered its first non-prosecution agreement in December 2010 with Carter’s Inc. In the Carter’s case the EVP of Sales, Joe Elles, allegedly gave substantial discounts to the company’s largest customer and hid them from the company.  Because the company didn’t know, it did not recognize the discounts until later reporting periods, which caused the company’s results for the quarters in which the discounts were given to be artificially inflated.  The SEC brought an action against Elles, but entered into a non-prosecution agreement with Carter’s. The SEC identified the following factors as relevant to its decision not to bring an action against Carter’s: (1) the “relatively isolated nature” of the unlawful conduct; (2) the company’s “prompt and complete” self-reporting of the misconduct to the SEC; and (3) the company’s “exemplary and extensive” cooperation in the inquiry, including a “thorough and comprehensive” internal investigation.  The SEC did not require Carter’s to waive its attorney-client privilege.

The SEC recently announced its first use of a deferred prosecution agreement, with Tenaris S.A., a manufacturer of steel pipe products from Luxemburg, listed on the New York Stock Exchange.  A world-wide internal investigation conducted by Tenaris’ outside counsel revealed Foreign Corrupt Practices Act violations in Uzbekistan, where Tenaris allegedly bribed Uzbek officials and made $5 million in profits from pipeline contracts.  The company self-reported to the SEC and the Department of Justice, cooperated with the government, and made extensive efforts at correcting the violations.

The SEC said that Tenaris was an appropriate candidate for the first deferred prosecution agreement because of its “immediate self-reporting, thorough internal investigation, full cooperation with SEC staff, enhanced anti-corruption procedures, and enhanced training.”

Under the deferred prosecution agreement, the SEC will not bring civil charges against Tenaris unless the SEC determines that the company has not complied with its obligations under the agreement.  Although Tenaris shared the results of its internal investigation with the government, the agreement does not require it to waive the attorney-client privilege.  Tenaris agreed to pay $5.4 million in disgorgement and interest.

By eliminating the Hobson’s choice of either cooperating and not knowing what will happen, or not cooperating and not knowing what will happen, the certainty provided by deferment and non-prosecution agreements will allow lawyers to better advise their clients on the consequences of self-reporting and corrective actions, and should make it easier for the SEC to secure cooperation from companies and individuals on a fair and reasonable basis.

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