Some New Financial Legislation is Moving Along

Four bills made their way through the Capital Markets and Government Sponsored Enterprises Subcommittee of the House Financial Services Committee.

The Private Company Flexibility and Growth Act, introduced by Rep. David Schweikert, raises the shareholder threshold for mandatory registration with the SEC from 500 to 1,000 shareholders. I’m surprised it’s not called the Google/Facebook Act. The 500 shareholder limit is most famous for forcing Google to go public and is close to forcing Facebook to do the same.

The Access to Capital for Job Creators Act removes the regulatory ban that prohibit general solicitation and advertising in private placements. There were two amendments to the bill during the mark-up session. Maxine Waters (D-CA) included and amendment that the revised SEC rules allowing a general solicitation under Regulation D must require the issuer to take reasonable steps to verify that purchasers of the securities are accredited investors using methods determined by the SEC. Scott Garrett (R-NJ) included an amendment that Section 4(2) of the Securities Act be revised to add the language: “whether or not such transactions involve general solicitation or general advertising.”

The Entrepreneur Access to Capital Act permits “crowdfunding” to finance new businesses by allowing companies to accept and pool donations up to $5 million without registering with the SEC. It would limit individual investments to the lesser of $10,000 or 10% of an investor’s annual income. An amendment requiring a notice filing with the SEC was rejected as was an amendment that would have barred felons from being involved.

The Small Company Job Growth and Regulatory Relief Act would expand the exemptions available to small companies from the Section 404(b) auditor attestation reporting requirements to small and mid-size companies with a market capitalization of less than $500 million. The exemption is currently at the $75 million cap set by the Dodd-Frank Act. During the mark-up, the House panel amended the bill to lower the market float from $500 million to $350 million.

Will these go anywhere? The votes seemed to very partisan with Republicans voting yes and Democrats voting no. That does not bode well for moving up the chain through the house, through the Senate and on to the President’s desk.  However, President Obama has already indicated an interest in the crowdfunding idea.

These are not the grand, sweeping changes of Dodd-Frank. These are small tweaks to the regulations on the capital markets.

Sources:

2011 LexisNexis Corporate and Securities Law Blog Nominees

For the second year, LexisNexis is seeking your input in choosing the top blogs for their Corporate and Securities Law Community.

(Warning, this post post contains blatant self-promotion.)

Looking at the list of candidates, I see many blogs that I read regularly. But there are several on the list that I had not heard of before and need to take a look at. If you are looking for a list of business law blogs to read, the list of nominees is a great place to start.

I think many more than 25 of the nominated blogs are much better than mine, whether its on quality, popularity, or some other factors. I doubt I will make it into the top 25 so I will sit back and take the consolation prize: the honor of being nominated. (Although, I thought the same last year, but still managed to squeak into the top 25.)

Lexis Nexis invites you to comment on the announcement post:

Top 25 Business Law Blogs 2010 – Corporate & Securities Law Community

To comment, you have to register. Registration is free and supposedly does not result in sales contacts. The comment period for nominations ends on October 25, 2011. They don’t say how they will end up selecting the top 25 out of the nominees, other than it’s based on their review and your comments.

As I said last year I’m also not sure how the Lexis-Nexis Communities fits in with the Martindale Hubbell Connected platform. There seems to be whole lot of substantive information in Communities that is missing in Connected. They should still get these two sites together.

Vote for the business law blogs you feel are the best or at least look through the list to add some new sites to your reading list. Go ahead and include Compliance Building.

NOMINEES FOR THE LEXISNEXIS CORPORATE & SECURITIES LAW
TOP 25 BLOGS FOR 2011

Alston & Bird’s “M&A Blog”
by Alston & Bird’s Corporate Transactions and Securities Practice

Alston & Bird’s Securities Lit. Blog
By Alston & Bird’s Securities Litigation Group

BD Law Blog
By Joel Beck

Boardmember.com

The Business Law Blog (Dryanlaw)
by Daniel J. Ryan

Business Law Post
By Arina Shulga

Business Law Prof Blog
By Multiple Authors

California Corporate & Securities Law
By Keith Bishop

Commercial Law Blog
By by Jennifer S. Martin, L. Ali Khan, Jason J. Kilborn, Robyn Meadows, Marie T. Reilly, Marc L. Roark, Keith A Rowley, Steven Semeraro, Anthony Schutz and Jim Chen discussing a variety of Commercial Law related topics.

Compliance Building
by Doug Cornelius

Conference Board Governance Blog
Editor, Gary Larkin

The Conglomerate
By Seven Law Professors blog about business, law, economics and society, including Gordon Smith, BYU Law School, Christine Hurt, Univ. of Illinois College of Law, Vic Fleischer, Univ. of Colorado Law School, Fred Tung, Emory Law School, Lisa Fairfax, George Washington Univ. Law School, David Zaring, Wharton School Legal Studies and Business Ethics Department, and Usha Rodrigues, University

Connecticut Employment Law Blog
by Daniel A. Schwartz of Pullman & Conley, LLC b

Consumer Law & Policy
Coordinators, Deepak Gupta and Jeff Sovern

Contracts Prof Blog
By Jeremy Telman

CorpGov.net
By James McRitchie

Corporate & Securities Law Blog
By Sheppard Mullin

Corporate Compliance Insights

TheCorporateCounsel.net
By Broc Romanek and Dave Lynn

Corporate Finance Law Blog
By Davis Wright Tremaine

Corporate Law and Governance
By Robert Goddard, a U.K. based Senior Lecturer at Aston Law, part of Aston Business School

The Corporate Library Blog–GMI
Published by GMI

Corporate Tool
By Josh King

Credit Slips
By Multiple Authors

David Tate’s Blog

DealLawyers.com Blog
By Broc Romanek

Delaware Corporate and Commercial Litigation Blog
By Francis G. X. Pileggi

The D&O Diary
Published by Kevin M. LaCroix

The Emerging Business Advocate
By Seaton M. Daly III

FCPA Compliance and Ethics Blog
by Thomas Fox

FCPA Professor
By Mike Koehler

Fraud Bytes
By Mark Zimbleman and Aaron Zimbleman

Harvard Corporate Governance Blog
By Harvard Law School Program on Corporate Governance

Hedged.biz
By Brian Goh, Burnham Banks, Mark Martyrossian, Mark Fleming

Hedge Fund Law Blog
by Bart Mallon

Indiana Commercial Foreclosure Law
By John Waller

Indian Corporate Law Blog
By Multiple Authors

nHouseBlog
Albish Publishing

Investor Relations Musings
by John Palizza

The Investment Fund Law Blog
by Pillsbury Winthrop Shaw Pittman

Jim Hamilton’s World of Securities Regulation

LFNP Blog
By Arthur Ryman

M&A Law Prof Blog
By Brian JM Quinn, Boston College Law School Professor

Marks on Governance
by Norman Marks

Marler Blog
By Bill Marler

Metropolitan Corporate Counsel
Publisher, Martha Driver

Nancy Rapoport’s BlogSpot
By Nancy Rapoport

NC Business Litigation Blog
By Mack Sperling of Brooks Pierce LLP

New York Business Law
Frederic R. Abramson

New York Business Litigation and Employment Attorneys Blog
By David S. Rich

No Funny Lawyers
By Jim Thomas

Northwest Litigation Blog
By Ater Wynne LLP

Perkins Coie’s MergerViewpoints
Publisher, Scott B. Joachim

PLI Securities Law Practice Center
By Kara O’ Brien

ProfessorBainbridge.com
by Stephen M. Bainbridge

Race to the Bottom (Corp Governance Blog)
a faculty and student collaborative blog published By J. Robert Brown, Jr.

retheauditors.com
By Francine McKenna

Reverse Merger Blog
By David Feldman

Robert A. G. Monks’ Blog
by Robert Monks

SEC Actions
By Thomas O. Gorman of Porter Wright

SEC Tea Party
By Robert Fusfeld

Securities Law Prof Blog
By Barbara Black

SEC Whistleblower Program
By Nick Fasulo

Small Business Trends
By Anita Campbell

Startup Company Lawyer
By Yoichiro Taku

Strictly Business
by Alexander Davie

10Q Detective
By David Phillips

The 10b-5 Daily
By Lyle Roberts

Truth on the Market
By Geoffrey Manne and Multiple Authors

UCC Food Ind. Law, Food Liability Law Blog
By Richard Goldfarb, Stoel Rives LLP

Uniform Commercial Code Litigation
By Robinson & Robinson LLP

USA Inbound Deals
by Bill Newman

US PIRG
By Ed Mierzwinski

The Venture Alley
Editors Trent Dykes, Asher Bearman of DLA Piper

Virginia Business Litigation Lawyer
By Lee Berlik

What About Clients
By Dan Hull

Workplace Prof Blog
By Richard Bales & Multiple Authors

WSJ Deal Journal

The SEC and Rating Agencies

The SEC examined all 10 firms registered Nationally Recognized Statistical Rating Organization (.pdf 23 pages) and found all 10 had “apparent failures”. The SEC has requested remediation plans from each of the agencies within 30 days and is continuing its investigation.

The issues found included “apparent failures in some instances to follow ratings methodologies and procedures, to make timely and accurate disclosures, to establish effective internal control structures for the rating process and to adequately manage conflicts of interest.”

Personally, I think the rating agencies have not gotten enough of the blame for their roles in the events leading up to the 2008 financial crisis. Without the golden top rating they issued to the toxic mortgage-backed securities,  I think the popping of the housing bubble would not have been so vicious.

In 2006, the Credit Rating Agency Reform Act granted the authority to establish a registration and oversight program for credit rating agencies to the SEC and gave them oversight over those credit rating agencies that register with the Commission as Nationally Recognized Statistical Rating Organizations (“NRSROs”). However, it expressly prohibits the SEC from regulating the substance of credit ratings or the procedures and methodologies by which an NRSRO determines credit ratings.

The Dodd-Frank Wall Street Reform and Consumer Protection Act enhanced the regulation and oversight by imposing new reporting, disclosure, and examination requirements. The new law also requires the SEC to conduct an examination of each NRSRO at least annually.  The 2011 Summary Report of t Commission’s Staff Examinations of Each Nationally Recognized Statistical Rating Organization (.pdf 23 pages) is the first to look at the ten under the new framework.

  1. A.M. Best Company, Inc.
  2. DBRS Inc.
  3. Egan-Jones Rating Company
  4. Fitch, Inc.
  5. Japan Credit Rating Agency, Ltd.
  6. Kroll Bond Rating Agency
  7. Moody’s Investors Service, Inc.
  8. Morningstar Credit Ratings, LLC
  9. Rating and Investment Information, Inc.
  10. Standard & Poor’s Ratings Services

The SEC did not determine that any finding discussed in this Report constitutes a “material regulatory deficiency”. That would have meant a referral to the Division of Enforcement and gotten more lawyers involved. The SEC does not single out by name any credit-rating agency for questionable actions in the report, but it does describe specific problems it found.

It will be interesting to see what happens next year. As most compliance people know, the failure to fix a problem pointed out by the SEC is likely to lead to trouble the next time they show up.

Sources:

Nationally Recognized Statistical Rating Organization (.pdf 23 pages)

Compliance Bits and Pieces for October 7

These are some compliance-related stories that recently caught my eye:

How Well Do Financial Markets Separate News from Noise? Evidence from an Internet Blooper by Carlos Carvalho, Nicholas Klagge, and Emanuel Moench in Liberty Street Economics

How efficiently do financial markets process news of unexpected events? This question becomes particularly salient now, as multiple events across the globe drive market movements. Do these gyrations reflect responses to fundamental news or to “noise”? In general, it is very difficult to discern how well markets process information, because there is no objective way for observers to separate fundamental news from noise components when markets react to a news report. In this post, however, we examine an unusual episode involving a false news report that provides a unique look into this question. We find that even when noise can be clearly identified, markets may take as long as a week to fully process the “signal,” or relevant information, component of news.

Subcommittee Advances 5 Bills to Promote Job Growth

Five bills that ease the regulatory burden on small businesses and emerging growth companies were approved by a Financial Services subcommittee yesterday. The proposals make it easier for entrepreneurs and small businesses to access capital so their companies can grow and create jobs.

Cozy relationships and ‘peer benchmarking’ send CEOs’ pay soaring by Peter Whoriskey in The Washington Post

This is how it’s done in corporate America. At Amgen and at the vast majority of large U.S. companies, boards aim to pay their executives at levels equal to or above the median for executives at similar companies.

The idea behind setting executive pay this way, known as “peer benchmarking,” is to keep talented bosses from leaving.

But the practice has long been controversial because, as critics have pointed out, if every company tries to keep up with or exceed the median pay for executives, executive compensation will spiral upward, regardless of performance. Few if any corporate boards consider their executive teams to be below average, so the result has become known as the “Lake Wobegon” effect.

Overview of the Latest Corruption by American Companies by Mike Koehler in Corruption Currents

On a weekly basis – or so it seems – media allegations surface of corruption by or related to American companies. This article highlights three such instances: Koch Industries, Motorola Solutions, and Chevron.

Reckless Endangerment

So what caused the 2008 financial crisis? We know that the direct cause was the meltdown in the US housing market. I think we are still trying to put together the pieces and point the finger of blame. It was a big bubble and the explosive reaction when the bubble burst. It took many different forces to get the bubble so big.

In Reckless Endangerment, Gretchen Morgenson and Joshua Rosner take their turn looking at the outsized ambition, greed, and corruption that lead up to the crisis. They point the finger of blame directly at Fannie Mae and its executives.

The authors portray a company that ruthlessly leveraged the implicit government guarantee to create billions of dollars of shareholder wealth and millions of dollars in executive compensation. They beat the drumbeat of housing as the American Dream. Everyone should get a chance to own their own home. Fannie Mae used their version of the American Dream to bully Congress and their regulators to let them have a very thin capital reserve and to keep their finances very opaque. The authors pin the blame squarely on James Johnson, the CEO of Fannie Mae during the 1990s and his successor, Franklin Raines.

The rating agencies also get some of blame by the authors. I think the rating agencies have not received enough of the blame. Their shoddy rating of debt instruments let them get AAA ratings that they did not deserve. Only a handful of companies and a handful of countries get the top rating. But when it came to real estate backed securities, the rating agencies were handing them out like cotton candy at the state fair.

Institutional investors were looking for safe place for their money that could still earn a coupon. US treasury bonds were paying a very low interest rate. Pension funds and insurance companies determine their funding levels based on a projected rate or return. Many were limited to only invest in the highest quality asset either by regulation or internal policies. That meant they would only buy the top rated bonds.

Banks has to maintain their capital levels based on the quality of the loans/bonds/assets they held. With top-rated bonds, the banks had to retain very little capital. By holding AAA ratted bonds, the banks could retain less capital and put more to work.

The rating agencies were telling them that these mortgage-backed securities were top rated. (They were wrong.)

The vast majority of the book is spent sticking pins in Fannie Mae, their lobbying efforts, and their executives. I agree that Fannie Mae abused its position. I agree that Fannie Mae helped create an attitude that everyone should be a homeowner and everyone should be able to afford to buy a home. But their story comes to crashing halt in 2004 when Fannie Mae gets caught in large scale accounting fraud. Most of the manipulation can be tied directly to triggers for executive compensation.

In 2005 the first signs of bad mortgages were popping up and the buyers for the lower rated pieces of mortgage debt were not buying them. Without those buyers, the mortgage securitization would fail. Fannie Mae was leading the charge up until that point. But it didn’t stop there. That’s why have a problem pointing the finger at Fannie Mae. The mortgage/housing boom kept going.

The authors pull some of the dubious lenders into the book. Countrywide, Novastar, and Fremont all get ripped apart.

It’s not until the last chapter that they hit upon the issue that hyper-inflated the real estate bubble. The buyers for the lowest rated pieces of mortgage-backed securities were not buying as much. In part, this was because the increased quantity of junk they saw ending up in the pools. In part, it may be because they saw the bubble. Then the magic happened.

Wall Street firms packaged the lower rated pieces into new pools and sold those securities. These were the toxic assets. Somehow they convinced the rating agencies that some tranches of this pile of junk could still get the top ratings. Those high rated tranches were sold off to the institutional investors and the real nasty stuff was sold off to more speculative investors. This kept the mortgage securitization pipeline going for two more years.

Why keep going when you could see the bubble? It was their job. There were thousands of jobs tied to originating the mortgages, the warehouse lines that funded them, the organization of the pools and the selling of the final securities. It was not their job to assess the bubble and just stop working. There was no brakeman in the system. The regulators do not have the oversight, the power, or the willingness to stop an asset bubble. (Let’s see what happens with the price of gold.)

The brakes were slammed on when the Wall Street firms realized they were holding on to the lowest rated tranches of the securitizations and they couldn’t get rid of them. They stopped the production. They stopped it fast. In early 2007 warehouse lines were cut off and underwriting standards were suddenly raised to higher (more sensible?) levels.

With the pipeline cutoff, the hyper-inflated housing bubble reached the bursting point. Then mortgage-backed securities investors stopped getting their checks. They realized that their coupon-paying beauty queen was just a pig with lipstick.

I think All the Devils Are Here did a better job of putting all the pieces together and The Big Short did a better job explaining the mechanisms of the mortgage-backed securities industry. If you don’t like Fannie Mae or want to read a story of how corporate greed exploited American politics then Reckless Endangerment should be on your reading list.

Lifting the Ban on General Solicitation

From a  securities compliance perspective, when you  see an advertisement or an email seeking capital for an investment opportunity there is most likely a problem. Now there is a bill in Congress that would change that view.

When selling a security, you need to register the security or find an appropriate exemption from registration. Most likely a private fund or an entrepreneur would try to fall under one of the exemptions under Regulation D. If the company is seeking over $1,000,000 they are prohibited from offering to sell the securities “by any form of general solicitation or general advertising“. Before asking someone to make an investment, you need to have a preexisting, substantive relationship.

“The types of relationships with offerees that may be important in establishing a general solicitation has not taken place are those that would enable the issuer (or a person acting on its behalf) to be aware of the financial circumstances or sophistication of the person with whom the relationship exists or that otherwise are of some substance and duration.” Mineral Lands Research & Marketing Corp., S.E.C. No-Action Letter, 1985 WL 55694 (Dec. 4 1985).

Representative Kevin McCarthy (R-CA) introduced the Access to Capital for Job Creators Act (HR 2940) which require the Securities and Exchange Commission to revise its rules to permit general solicitation in offerings under Rule 506 of Regulation D.

In my view, I don’t think there should be an elimination of the ban on general advertising and general solicitation. That would just expose large segments of the population to potential securities fraud. Currently, ads for investment opportunities are red flags for state and federal regulators.

However, I do think it needs to a little easier for entrepreneurs to raise capital. The SEC should offer some better guidance on the limitation. They could also offer some programs and safe harbors. I assume the SEC is waiting for someone to approach them with examples. They continue to be too underfunded and too understaffed to be proactive.

Will the Access to Capital for Job Creators Act be enacted? I doubt that it would pass in its current form. It takes away some investor protection and warning system for securities regulators. That would seem a bad position when the country is stealing trying to recover from the massive losses of 2008.

Sources:

Crowdfunding

It’s hard to raise capital. The regulatory restrictions imposed by securities laws make it harder to do so. As any bright-eyed entrepreneur with a dream project will tell you, the lawyers and the securities laws make it very expensive and time consuming to raise capital for a small project.

The central goal of the Securities and Exchange Commission is to facilitate companies’ access to capital while at the same time protecting investors. More often than not, the securities laws and regulations are put in place due to some prior malfeasance. Limitations on the sale of securities are in place because there were (and still are) lots of shady characters trying to make a quick buck by de-frauding investors.

The Obama administration and the Congress think the regulatory burdens need to be removed to encourage small business capital formation. I’m going to guess that they are fans of Kickstarter, a website that allows entrepreneurs and artists to raise capital for their projects. (I’m also a fan and have contributed to some projects.)

SEC Rule 504 allows a public offering to investors (including non-accredited investors) for securities offerings of up to $1 million. There is no limit on the type of investors, so they need not be accredited investors.  There are no prescribed disclosures and no limitations on resales of the securities. The Rule generally does not allow companies to solicit or advertise their securities to the public.(Of course, the antifraud and other civil liability provisions of the federal securities laws are still applicable.)

However, these offerings are subject to state “blue sky” regulation. That means having to jump through the patchwork of state securities laws, depending where your target investors are located.

How does Kickstarter get around this? It doesn’t. Capital for Kickstarter projects cannot be for securities or lending. As a patron, you do not get your capital returned. Often, you’ll get the end product that the artist or entrepreneur was hoping to produce. (My son is patiently waiting for our pack of trebuchettes to arrive.)

Generally, the term “crowdfunding” is used to describe a form of capital raising whereby people pool money, generally as small individual contributions, to support a specific goal. Since the capital raising did not provide an opportunity for profit participation, initial crowdfunding efforts did not raise issues under the federal securities laws.

The Entrepreneur Access to Capital Act would create a new exemption for small companies, allowing them to raise up to $5 million. The limitation would be that investments are limited to the lesser of $10,000 or 10% of the investor’s annual income.

President Obama cheered for crowdfunding as part of the American Jobs Act unveiling. I failed to find and proposed legislative changes in his proposed bill.

I’m for fueling entrepreneurial growth in this country. I’m concerned that the changes could lead to an onslaught of fraud. I think Kickstarter works well because you are funding the effort. You are not seeing dollars signs.

Sources:

Stealing Private Equity Investment Opportunities

Private equity transactions are not outside the scope of enforcement by the Securities and Exchange Commission. The SEC filed a case against a former principal of an investment adviser that manages private equity funds. The charge is that he “usurped …[a] lucrative investment opportunity in a private company.” At this point, the SEC has only filed for a cease and desist order and has not proven the allegations against Matthew Crisp.

Crisp worked for Adams Street Partners, a private equity firm registered with the SEC as an investment adviser. In 2006 and 2007, Adams Street was looking at investing in TicketsNow. Crisp was assigned as the lead sponsor of the possible investment. They decided to go ahead, but the investment was greater that their typical investment amount so Crisp decided to syndicate a portion of the committed investment.

Crisp decided to create his own investment fund and take a portion of the  syndication. Adams Street contends that Crisp was not authorized to syndicate the investment to his own fund. He also increased the size of his fund’s allocation.

The SEC contends that the resulting decrease in the size of the Adams Street’s collective investment in TicketsNow was a misappropriation of a lucrative investment opportunity that should have gone to Adams Street. The SEC alleges that Crisp did not disclose his involvement to Adams Street. That would include failing to report the involvement on his periodic compliance disclosures. Failure to disclose such information was a violation of the Adam Street’s fiduciary duties and of it’s policies.

It turned out to be a good investment because TicketsNow was sold to a competitor a year later.The investment tripled their invested capital.

The SEC alleges that this was not a single instance of malfeasance. They claim that Crisp tried again with an investment in Sherman’s Travel. He took a syndication in that investment in his own investment fund.

Adams Street discovered the problem and, after conducting an internal investigation, terminated Crisp. Thy also took the next step and self-reported the matter to the SEC.

The SEC alleges that Crisp violated Sections 206(1), 206(2), and 206(4) of the Advisers Act. They extend this through Rule 206(4)-8 which prohibits fraudulent activity by advisers to pooled investment vehicles with respect to investors or prospective investors.

In the alternative, the SEC contends that Crisp aided and abetted Adams Street’s violation of Sections 206(1), 206(2), and 206(4) of the Advisers Act, extended through Rule 206(4)-8.

Further, the SEC alleges that pursuant to the actions outlined above, Crisp willfully violated Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder.

The cease and desist proceeding is being instituted to determine whether the allegations noted are true and what remedial action is appropriate. Crisp already returned a large portion of his returns to Adams Street.

As more private equity fund managers are going to be registered with SEC in the next six months, I found this case to be an interesting example of SEC enforcement in the industry. Assuming that Crisp actually did what the SEC alleges, such activity should be a violation of the firm’s conduct policy and a violation of it’s funds’ partnership agreements. Investors generally will impose a contractual obligation on the fund manager to not divert investment opportunities to employees and principals of the fund manager.

So how does SEC enforcement help in this area? I suppose it adds the scare factor of a government investigation on top of losing your job and professional reputation.

Sources:

Robbery Not Allowed is by Anders Sandberg