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History

Wall Street Crash of 1929 & Pecora Investigations

Securities regulation came about after the stock market crash that occurred in October 1929. An economic depression followed the Wall Street Crash of 1929, which motivated the Pecora Commission led by Ferdinand Pecora to investigate the reasons for the crash. President Franklin Roosevelt was elected during this Great Depression, and during his famous "first 100 Day” period of his New Deal he was determined to create laws to regulate securities transactions. Congress discovered that the stock market crash was largely due to problems with securities transactions, including the lack of relevant information about securities given to investors and the absurd claims made by the sellers of securities in companies that did not even exist yet. This lack of information lead to a disclosure scheme that requires sellers of securities to disclose pertinent information about the company to investors so that they are able to make wise financial decisions. After the Pecora hearings, Congress decided to pass the Securities Act of 1933 and the Securities Exchange Act of 1934. These two statutes regulate the exchange of securities, require the disclosure of information, and inflict consequences on individuals that do not disclose information properly, whether it be intentional or erroneous. These laws were the first of many to rebuild investor confidence and protection.

Prior to the Securities Act of 1933, securities were mainly regulated by state laws, which are also known as blue sky laws. This statute broadly defines a security as “any note, stock, treasury stock, security future, security-based swap, bond, debenture, evidence of indebtedness, certificate of interest, or participation in any profit-sharing agreement.” In simpler terms, a security is a medium of investment that creates a certain level of financial obligation. The Securities Exchange Act of 1934 led to the formation of the Securities Exchange Commission (SEC), which has the authority to oversee secondary market securities, financial reports, and the behavior of professionals that deal with the exchange of securities. The goal of this act was to limit financial manipulation and increase the level of transparency and accuracy in financial dealings.

Howey Test

The Howey Test is used to determine if a transaction is considered to be an investment contract, which is a contract where an investor is expected to get a profit (return on investment) without putting in work. This is a significant test because it determines whether or not certain transactions qualify for SEC registration and adherence to disclosure rules. In the 1946 SEC v. W. J. Howey Co. case, the Supreme Court determined three parts to this test that qualifies a transaction as an investment contract:

1.     There is an investment of money or assets

2.     The investment is in a common enterprise

3.     There is a reasonable expectation of profits (or assets) and reasonable reliance on the efforts of others

There are two ways to define the common enterprise aspect of this test, which include horizontal and vertical commonality. Horizontal commonality is when investors combine funds and share profits proportionally. All courts allow horizontal commonality, but only some courts will allow vertical commonality for the common enterprise requirement. Vertical commonality refers to the investors and the promoter of the investments, and it evaluates the similarity of how each person is affected.

Overview

Many of the federal securities laws were created as part of Franklin Roosevelt’s New Deal in the 1930’s. There are five major federal securities laws:

1. Securities Act of 1933 – regulating distribution of new securities
2. Securities Exchange Act of 1934 – regulating disclosure of information; regulating trading securities, brokers, and exchanges
3. Trust Indenture Act of 1939 – regulating debt securities
4. Investment Company Act of 1940 – regulating mutual funds
5. Investment Advisers Act of 1940 – regulating investment advisers

Securities Act of 1933

The Securities Act of 1933 regulates the distribution of securities to public investors by creating registration and liability provisions to protect investors. With only a few exemptions, every security offering is required to be registered with the SEC by filing a registration statement that includes issuer history, business competition and material risks, litigation information, previous experience of officers/directors, compensation of employees, an in-depth securities description, and other relevant information. The price, amount, and selling method of securities must also be included in the registration statement. This statement is often written with the assistance of lawyers, accountants, and underwriters due to the complexity and large amount of information required for a valid registration statement. After a registration statement is successfully reviewed by the SEC, the prospectus selling document provides all the relevant information needed for investors and security purchasers to make an informed financial decision. This document will include both favorable and unfavorable information about a security issuer, which differs from the way securities were exchanged before the stock market crash. Section 5 of the 1933 Act describes three significant time periods of an offering, which includes the pre-filing period, the waiting period, and the post-effective period. If a person violates Section 5 in any way, Section 12(a)(1) imposes a liability that allows any purchaser of an illegal sale to get the remedy of rescinding the contract or compensation for damages. Criminal liability is determined by the United States attorney general, and intentional violation of the 1933 Act can result in five years in prison and a $10,000 fine.

Securities Exchange Act of 1934

The Securities Exchange Act of 1934 is different from the 1933 Act because it requires periodic disclosure of information by the issuers to the shareholders and SEC in order to continue to protect investors once a company goes public. The public issuers of securities must report annually and quarterly to the SEC, but only annually to investors. Under this law, public issuers are required to register the particular class of securities. The registration statement for the 1934 Act is similar to the filing requirement of the 1933 Act only without the offering information. Another major reason for the implementation of the 1934 Act was to regulate insider securities transactions to prevent fraud and unfair manipulation of securities exchanges. In order to protect investors and maintain the integrity of securities exchanges, Section 16 of this law states that statutory insiders must disclose security ownership in their company 10 days prior and are required to report any following transactions within two days. A corporation officer with equity securities, a corporation director, or a person that owns 10% or more of equity securities is considered to be a statutory insider that is subject to the rules of Section 16. Anyone that intentionally falsifies or makes misleading statements in an official SEC document is subject to liability according to Section 18, and people relying on these false statements are able to sue for damages. The defendant must prove they acted in good faith and was unaware of any misleading information. Rule 10b-5 allows people to sue fraudulent individuals directly responsible for an omission of important facts or intentional misstatements. The SEC does not have the authority to issue injunctions, but it does have the authority to issue cease and desist orders and fines up to $500,000. Injunctions and ancillary relief are achieved through federal district courts, and these courts are often notified by the SEC. People who plan on selling securities can contact the SEC to propose a transaction plan and ask for a no-action letter, which states the SEC staff will not take any legal action for transactions listed in the letter.

Registration Exemptions

Since the 1933 Act registration requirements can be very complex, costly, and take a lot of time to complete, many people look for alternative ways to sell securities. There are securities exemptions and transaction exemptions that do not require registration with the SEC, but the issuers of these security transactions are still liable for any fraud that may occur. Securities exemptions include insurance policies, annuity contracts, bank securities, United States government issued securities, notes/drafts with a maturity date less than nine months after the issue date, and securities offered by nonprofit (religious, charitable, etc.) organizations. Transaction exemptions include intrastate offerings (Rule 147), private offerings (Rule 506, Regulation D), small offerings (Regulation A; Rules 504 & 505), and resale of restricted securities (Rule 144).

Intrastate Offerings

Intrastate offerings are when securities are only offered to investors that live in the state where the business resides. This type of transaction qualifies for the SEC registration exemption on a federal level. However, state securities laws (blue sky laws) still have to be followed. Rule 147 specifies that 80% or more of the issuer’s revenue and assets must remain in the specified state, as well as 80% of the proceeds from the intrastate offerings must be used in the same state.

Private Offerings

A private offering is not open to the public, but rather only available to a small group of purchasers that are able to safely invest due to their large amount of wealth or extensive knowledge about investments. Rule 506 in Regulation D of the Securities Act states that the issuer must reasonably determine if the investors qualify by being accredited or experienced in financial investment matters, and the investors should sign a suitability letter. Although these transactions are exempt from SEC registration, issuers still must provide investors with substantial information that allows them to make an informed decision. Rule 506 also restricts the issuer from offering securities publicly and requires the issuer to try and make resale of securities remain private.

Small Offerings

Rule 505 of Regulation D also allows for shorter disclosure forms when small offerings are made of no more than $5 million in a period of one year. However, the issuer cannot have a history of securities fraud or related crimes. Rule 505 does not allow general selling efforts and requires disclosure similar to Rule 506, but purchasers do not have to be experienced with investments. Rule 504 exempts SEC registration of a nonpublic issuer of $1 million or less in securities within a period of one year as long as the issuer discloses the relevant information required by state law. Rule 504 also allows general selling efforts, has no limit on how many purchasers, and purchasers do not need specific qualifications. Regulation A provides an exemption to SEC registration of small market offerings of $5 million or less, and there is less of a disclosure requirement. The disclosure statement is called an offering circular, which contains a balance sheet from at most 90 days before the file date, two years of income statements, cash flow information, and shareholder equity reports. Regulation A does not specify purchaser number, sophistication, or resale requirements. In some cases, the SEC will exempt offerings of $50 million or less since the amendment created by the JOBS Act.

Resale of Restricted Securities

Securities in accordance with Rules 504, 505, and 506 (Regulation D) are considered restricted securities. These restricted securities are often acquired by investors through unregistered or private offerings, meaning the securities cannot be resold for a period of time unless registered with the SEC or it qualifies for an exemption. Rule 144 provides an exemption to this rule and allows purchasers of restricted securities to resell under certain circumstances. There is a holding period that must be met in order for anyone to sell restricted securities. If the issuer of the security is a public company that reports to the SEC, then the purchaser must hold the security for a minimum of six months. If the issuer does not report to the SEC, then the purchaser must hold the securities for a minimum of one year. Another requirement is that there must be current public information readily available about the company that issued the securities before the sale can happen. Affiliated investors must follow a trading volume formula and carry out routine brokerage transactions in accordance to the SEC. Investors that are unaffiliated to the issuer company can sell all or a portion of the restricted securities after complying with the holding time. An affiliated investor can only sell a limited number of restricted securities and has to comply with more complicated requirements. Affiliated resellers of restricted securities are required to file Form 144 with the SEC.