Securities and Exchange Commission (SEC)

SEC to Allow Issuers to File Draft Initial Registration Statements on a Nonpublic Basis

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On June 29, 2017, the Securities and Exchange Commission (“SEC“) announced that it would begin to allow issuers to file draft initial registration statements under the Securities Act of 1933 (the “Securities Act“) on a nonpublic basis. Any company, foreign or domestic, will be allowed to submit registration statements for nonpublic review, similar to the benefit granted to emerging growth companies under the Jumpstart Our Business Startups Act (JOBS) as long as it confirms in a cover letter that it will publicly file its registration statement at least 15 days prior to any road show or, in the absence thereof, at least 15 days prior to the requested effective date of its registration statement. The SEC also announced that it would begin to accept draft registration statements submitted prior to the end of the 12th month following the effective date of an issuer’s initial Securities Act registration statement, or its registration statement under Section 12(b) of the Securities and Exchange Act of 1934, for nonpublic review so long as the issuer confirms in a cover letter that it will publicly file its registration statement and nonpublic draft submission on EDGAR at least 48 hours prior to any requested effective time and date. Report. Press Release.

Public Comments Solicited From Retail Investors and Other Interested Parties on Standards of Conduct for Investment Advisers and Broker-Dealers

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On June 1, 2017, Securities and Exchange Commission (“SEC“) Chairman Jay Clayton issued a statement (the “Statement“) soliciting public comments from retail investors and other interested parties on standards of conduct for investment advisers and broker-dealers. The Statement was, in part, in response to the announcement by the Department of Labor that it intends to issue a Request for Information regarding various aspects of its fiduciary rule and its desire to engage with the SEC as each agency pursues its own ongoing analysis of these standards.

The Statement sets forth an extensive, detailed list of questions and issues on which comments are requested. To facilitate the SEC’s assessment of the issues, the Statement announced that a webform and email box are now available for members of the public to make their views on these issues known in advance of any future SEC action.

Fee Rate Advisory #3 for Fiscal Year 2017

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On May 31, 2017, the Securities and Exchange Commission (“Commission“) announced that starting July 4, 2017, the fee rates applicable to most securities transactions will be set at $23.10 per million dollars. Consequently, each self-regulatory organization will continue to pay the Commission a rate of $21.80 per million for covered sales occurring on charge dates through July 3, 2017, and a rate of $23.10 per million for covered sales occurring on charge dates on or after July 4, 2017. Release. Rule.

SEC Adopts Jobs Act Amendments

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On April 5, the Securities and Exchange Commission (“SEC“) announced that it has adopted amendments to increase the amount of money companies can raise through crowdfunding to adjust for inflation. It also approved amendments that adjust for inflation a threshold used to determine eligibility for benefits offered to “emerging growth companies” (“EGCs“) under the Jumpstart Our Business Startups (JOBS) Act.

The SEC is required to make inflation adjustments to certain JOBS Act rules at least once every five years after it was enacted on April 5, 2012. In addition to the inflation adjustments, the SEC adopted technical amendments to conform several rules and forms to amendments made to the Securities Act of 1933 (“Securities Act“) and the Securities Exchange Act of 1934 (“Exchange Act“) by Title I of the JOBS Act. The Commission approved the new thresholds on March 31. They will become effective when they are published in the Federal Register.

The Commission provided a helpful chart that sets out the inflation-adjusted amounts for the maximum amount of offerings and investment limits, specifically: (i) the maximum aggregate amount an issuer can sell in a 12-month period; (ii) the threshold for assessing an investor’s annual income or net worth to determine investment limits; (iii) the lower threshold of Regulation Crowdfunding securities permitted to be sold to an investor if annual income or net worth is less than the adjusted thresholds; (iv) the maximum amount that can be sold to an investor under Regulation Crowdfunding in a 12-month period; and (v) the inflation-adjusted amounts for determining financial statement requirements.

Also, pursuant to sections of the Securities Act and the Exchange Act added by the JOBS Act, which define the term “emerging growth company,” every five years the Commission is directed to index the annual gross revenue amount used to determine EGC status to inflation. To carry out this statutory directive, the SEC has adopted amendments to Securities Act Rule 405 and Exchange Act Rule 12b-2 to include a definition for EGC that reflects an inflation-adjusted annual gross revenue threshold. Press Release.

SEC Adopts T+2 Settlement Cycle for Securities Transactions

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On March 22, 2017, the Securities and Exchange Commission (SEC) adopted an amendment to Rule 15c6‑1(a), shortening the standard settlement cycle for most broker-dealer securities transactions by one business day, beginning on September 5, 2017. The amended rules shorten the settlement cycle from three business days (T+3) to two business days (T+2). The purpose of the amended rule is to enhance efficiency, reduce risk and ensure coordinated and expeditious transition by market participants to a shortened standard settlement cycle. Release.

SEC Staff Issues Guidance Update and Investor Bulletin on Robo-Advisers

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On February 23, 2017, the Securities and Exchange Commission (“SEC“) published information and guidance for investors and the financial services industry on the use of robo-advisers, described by the Staff as “registered investment advisers that use computer algorithms to provide investment advisory services online with often limited human interaction.” Press Release.

The guidance update (the “Update“) was issued by the SEC’s Division of Investment Management in order to address the unique issues raised by robo-advisers. It makes a number of specific suggestions on meeting disclosure, suitability and compliance obligations under the Investment Advisers Act of 1940 (the “Advisers Act“). The Update, however, is less prescriptive than the “Report on Digital Investment Advice” issued by the Financial Industry Regulatory Authority (“FINRA“) in March 2016 (the “FINRA Report“).

The FINRA Report generally addressed the issues faced by “financial services firms” (including both broker‑dealers and investment advisers) in the use of “digital investment advice tools.” As stated by FINRA, the effective practices discussed in the FINRA Report are “specifically intended for FINRA-registered firms, but may be valuable to financial professionals generally.” Accordingly, it is suggested that the Update be read carefully in conjunction with the FINRA Report, particularly by dually registered broker-dealers and investment advisers.

The Update notes that there may be a variety of means for a robo-adviser to meet its obligations to clients under the Advisers Act and that not all of the issues addressed in the Update will be applicable to every robo-adviser.

Also on February 23, 2017, the SEC’s Office of Investor Education and Advocacy (OIEA) published an Investor Bulletin that “provides individual investors with information they may need to make informed decisions if they consider using robo-advisers.”

The Investor Bulletin describes a number of issues investors should consider, including:

  • The level of human interaction important to the investor,
  • The information the robo-adviser uses in formulating recommendations,
  • The robo-adviser’s approach to investing,

The fees and charges involved.

SEC, NASAA Sign Info-Sharing Agreement for Crowdfunding and Other Offerings

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On February 17, 2017, the Securities and Exchange Commission (SEC) and the North American Securities Administrators Association (NASAA) signed an agreement to facilitate information sharing with respect to rules regarding intrastate crowdfunding and regional offerings. The information sharing agreement is intended to help state and federal securities regulators ensure that the rules regarding intrastate crowdfunding and regional offerings ” are serving their intended purpose of facilitating access to capital for small businesses.” Release.

Exemptions for Security-Based Swaps

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On February 10, 2017, the Securities and Exchange Commission (SEC) extended to February 11, 2018 the expiration dates of certain interim final rules relating to “exemptions under [various securities laws] for those security-based swaps that prior to July 16, 2011 were security‑based swap agreements and are defined as securities under the Securities Act and the Exchange Act as of July 16, 2011 due solely to the provisions of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act.” Release.

SEC Adopts Business Conduct Standards for Security-Based Swap Dealers and Major Security-Based Swap Participants

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On April 15, 2016, the Securities and Exchange Commission adopted final rules modifying regulations “for security-based swap dealers and major security-based swap participants (security-based swap entities).”  The final rules address conduct and compliance officer issues. Release.