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Posted on Monday, October 16 2017 at 9:43 am by

Regulation S-K Amendments Promise FAST Relief

By Paul Foley, John I. Sanders, and Lauren Henderson

On October 11, 2017, the SEC issued a Proposed Rule to modernize and simplify disclosure requirements in Regulation S-K.[1] The Proposed Rule, authorized by the Fixing America’s Surface Transportation Act (the “FAST Act”), is intended to reduce the costs and burdens on registrants while still providing investors with disclosures that are user friendly, material, and free of unnecessary repetition.[2]

The Proposed Rule, if adopted, would amend rules and forms used by public companies, investment companies, and investment advisers.[3] The most notable provisions of the Proposed Rule include the following:

  • Eliminating risk factor examples from Item 503(c) of Regulation S-K because the examples do not apply to all registrants and may not actually correspond to the material risks of any particular registrant;[4]
  • Revising description of property owned by the registrant in Item 102 of Regulation S-K to emphasize materiality;[5]
  • Eliminating undertakings that are unnecessarily repetitious from securities registration statements;[6]
  • Changing exhibit filing requirements and allowing flexibility in discussing historical periods in the registration statement section dedicated to Management’s Discussion and Analysis;[7]
  • Permitting registrants to omit confidential information (e.g., personally identifiable information and material contract exhibits) from Item 601 without submitting a confidential treatment request;[8] and
  • Using hyperlinks in forms to help investors access to documents incorporated by reference.[9]

The SEC will accept public comments on the Proposed Rule for sixty days before determining whether to issue a final rule or amend the proposal and seek additional public comment.[10] We anticipate that the Proposed Rule will be well-received by all stakeholders and be finalized relatively quickly.

We invite you to contact us directly if you have any questions about the SEC’s Proposed Rule or Regulation S-K generally.

Paul Foley is a partner with Kilpatrick Townsend & Stockton’s Winston-Salem and New York offices.  John I. Sanders and Lauren Henderson are associates based in the firm’s Winston-Salem office.

[1] SEC, SEC Proposes Rules to Implement FAST Act Mandate to Modernize and Simplify Disclosure (Oct. 11, 2017), available at https://www.sec.gov/news/press-release/2017-192.

[2] Id.

[3] Id.

[4] SEC, Proposed Rule: FAST Act Modernization and Simplification of Regulation S-K,

Release No. 33-10425; 34-81851; IA-4791; IC-32858, available at https://www.sec.gov/rules/proposed/2017/33-10425.pdf.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

Posted on Wednesday, October 11 2017 at 2:57 pm by

Proposal to Change from Quarterly to Annual Periodic Reporting

By: W. Randy Eaddy

This post is not about a recent development or practice tip. It is a “trial balloon” to test, in a public forum, my outlier but serious proposal that has haunted me for almost 20 years. I began a fairly long article about it in 2005, but colleagues and other friends talked me out of it then. I have now escaped their clutches and plan to complete the article, perhaps depending on the reactions to this post. I have already been called a latter‑day Don Quixote, and told that the article is a fool’s errand, by friends. So, don’t be shy or pull any punches.

The Proposal, In Summary

I propose that a company’s fiscal year, rather than quarterly periods, be the periodic reporting cycle for financial and other operating results performance information. As a result, under my proposal, the quarterly report on Form 10-Q would be eliminated. The annual report on Form 10-K and current report on Form 8‑K would both remain, in essentially their respective present forms. The parallel derivative rituals of quarterly earnings releases and quarterly conference calls would also be eliminated, along with any other listing criterion based on quarterly reporting that is imposed by the New York Stock Exchange, the Nasdaq Stock Market or any other trading market that is subject to SEC regulation.

As an integral component of my proposal, all public companies would be required to give guidance about anticipated earnings for the upcoming fiscal year (although not for any interim period thereof) as part of each year’s annual report on Form 10-K. The company would also be required to assess developments over the course of the fiscal year to determine whether operations are on track with the guidance. If some development indicates that a material deviation from the guidance is likely, whether favorable or unfavorable, the company would be required to promptly disclose relevant information about that development and to adjust the prior guidance accordingly.

My proposal would not change any current rule that requires insiders to disclose promptly their trading activities with respect to their companies’ securities.

Principal Reasons and Rationale

There is inherent tension between the short-term nature of our quarterly periodic disclosure regimes, on the one hand, and the stated desire for (and putative imperative of) long-range strategic planning by companies and managements in order to enhance long-term shareholder value, on the other hand. That tension inevitably translates, in practice, into an actual conflict between two competing interests, each of which can be legitimate on its own terms: (a) building and enhancing shareholder value as measured by the intrinsic and long-term strength (or worth) of a company, and (b) lawfully promoting the day-to-day trading prices of the company’s equity security. Such tension is at the root of most problems that lead to both corporate scandals involving misstated earnings (or other operating results) and short-sighted, speculation-driven trading behavior.

Our quarterly periodic disclosure regimes accentuate the disconnection between those two interests and lead corporate actors and investors to focus inordinately on short-term results to the detriment of sound strategic planning for long-term value creation. They ensure that the behavior of managements of public companies will be influenced significantly (if not driven) by achieving performance results on a quarterly basis. The resulting short-term focus and its myriad manifestations – which are captured by the phrase “short-termism” – are a pervasive problem and a malady.

That condition, however, is neither inevitable nor a prerequisite for an efficient or effective capital markets system. It is principally a consequence of our current disclosure regimes having made the three-month quarterly cycle of reports and rituals a major touchstone for tracking and measuring performance by public companies. It can be cured with real medicine.

I believe we have been led to stay this course, ignoring the real cure, by the tempting illusions of the “efficient capital markets theory”, which fosters an ethos of near‑immediate disclosure of virtually all material information about the performance of public companies. The illusions condition us to believe that market participants who are armed with such information will use it rationally in making investment decisions; that such investments reflect and yield logical allocations of capital; that such allocations, in turn, will yield a rational and value-based pricing of the securities; and that good things otherwise have followed (and will continue to follow) for the U.S. capital markets system and the American economy.

As an aspirational model or reference points for developing the substance of public disclosures, that’s all fine. As the fundamental justification or premise for the frequency of such disclosures imposed by our quarterly regimes, however, those beliefs are seriously flawed.

If we want to promote a longer-term and more strategic focus by public companies and their management; if we want analysts, investors and other market participants to focus on long-term value propositions; if we want to curtail short-termism more generally; and if we want to shape and encourage such behaviors, then we must rethink the fundamentally short-term timetable we have established for our periodic disclosure regimes, and administer some real medicine. We cannot expect such long-term focus and behavior, while requiring short-term measures.

Why the Guidance Requirement?

The annual earnings guidance component of my proposal may appear to be gratuitous, because such a requirement arguably is not compelled in order to address the short-termism problem and malady. While my proposal could be implemented without the guidance requirement, I believe it is important. Investors and other capital markets participants will inevitably require certain forward-looking information in order to make strategic and rational investment decisions. The current informal, non-required, practice of providing earnings guidance arose to address that practical reality. There is no reason to believe that that reality would change under my proposed annual disclosure regime. Accordingly, I believe it is better to embrace that reality and develop a system that can help guard against the emergence of behavior that undermines the benefits of changing to an annual periodic reporting regime. I believe instituting a formal, annual earnings guidance requirement would help prevent the reemergence of an informal but wide-spread guidance practice that continues the current quarterly focus.

My proposed guidance requirement is not a long step from either the SEC’s implicit position or prevailing practice. While the SEC does not encourage earnings guidance, it readily accepts the current informal practice, and it otherwise encourages disclosures that look into the future based on “trends” and certain other matters that companies know. Many (if not most) public companies already provide earnings guidance voluntarily. With respect to major public companies that do not presently provide earnings guidance, I suspect their position is based primarily upon an aversion to the quarterly focus for which guidance is expected if it is given, and the resulting problems of short-termism that flow from a quarterly focus.

My proposed guidance requirement is logical, reasonable and fair, especially as a trade-off for eliminating the unhealthy consequences of quarterly operating disclosures. It is not unreasonable to require a public company to give its best estimate of what the upcoming fiscal year looks like with respect to earnings. It is certainly reasonable to expect and require the company – which has chosen to invite the public to invest in its securities and thus in its prospects – to think seriously about the matter, and to develop an articulable view on it, as part of the company’s prudent strategic planning for its operations. It is logical, reasonable and fair to expect and require the latter as a condition of public company status.

Addressing Some Legitimate and Fair Concerns

If one has not previously thought about a change from quarterly to annual only periodic reporting, my proposal may be shocking and will likely cause much concern. When the initial shock wears off, however, I believe only the following three will remain as significant legitimate and fair concerns that arise because of my proposal. I believe my proposal answers each of them, but here they are initially without counter‑points.

First, what happens with material operating developments that become known by a company’s management during the current fiscal year, well before the time for the company’s next required annual disclosure of operating performance? Surely, no one benefits from (or should want) such information to be sprung upon an unsuspecting investment community and public in a year-end catharsis.

Second, what about the risk that information about such a development might leak, whether willfully or inadvertently, and be used by a select few to the detriment of the unsuspecting public? It would be naïve to expect that all such developments would remain truly “secret” for the possibly long periods of time that they may be known by a company before the end of its fiscal year.

Third, wouldn’t allowing a full fiscal year before operating performance disclosures are required simply invite (and give more time to orchestrate) all manner of skullduggery?

With respect to the first concern, my proposal would continue Form 8-K, which requires immediate disclosure about several types of events or developments. I believe the requirements of Form 8-K (with modest appropriate tweaking) can address effectively the first concern, without sliding back down the slope into full-blown quarterly operating disclosures. Also, the ongoing assessments aspect of the earnings guidance component would require prompt disclosure and an updating adjustment if any such development affects the earnings guidance that was provided for the current fiscal year.

With respect to the second concern, Regulation FD is an effective tool for regulating the leaking (or other selective disclosure) of information about interim developments, and it would be unchanged under my proposal. There is absolutely no basis for believing that Regulation FD would be less effective under my proposal. And, of course, private as well as administrative lawsuits remain as options to address and remediate unlawful trading on inside information.

With respect to the third (more general) concern, I agree that it is tautological that more time to hide something (or to dissemble with respect to it) increases the likelihood of success at doing so. However, I believe the greatest temptation for disclosure skullduggery is the shortness of the period for measuring and reporting operating results. Moreover, I believe that positing such unlawful behavior as an insurmountable risk of implementing my proposal would presuppose a level of inveterate unscrupulousness by corporate actors that is overly cynical and unwarranted. It would be tantamount to saying that unlawful behavior is innate, and so we should dispense with all law and embrace anarchy.

It is also reasonable to believe and expect that the year-end requirement for an independent audit of a company’s financial statements, along with the attendant year-end processes and the myriad corporate governance protocols imposed by the Sarbanes-Oxley Act, would still operate to help keep folk honest. And, there would be equal amounts of time, over the course of the fiscal year, for those processes to help ferret out possible skullduggery.

Concluding Observations

I have not conducted any surveys or other empirical investigations. But, over the course of 37 years of practice, I have represented and otherwise observed and interacted with hundreds of executives and directors of public companies and investors in such companies. On that substantial albeit anecdotal basis, I believe most executives and directors would applaud a movement to an annual periodic disclosure regime, after the possible taint of them being perceived as iconoclasts or mavericks has been removed. I also believe most small investors — the prototypical “moms and pops” who may be at the top of the heap of casualties under the current quarterly disclosure regimes — and most of the investing public generally would likewise recognize that eliminating quarterly disclosure of financial and other operating results can actually lead to more meaningful and useable information for their investment activity.

This post is only a summary of the discussions I plan for the article. In the article, I employ amusing metaphors and humor (or at least I try to) in presenting more detail about each of (a) the short-termism problem and malady afflicted by the current quarterly periodic reporting regimes, (b) the rationale for (and benefits of) my proposed change and (c) the broader context and history of our approach to public company disclosures. Many thanks if you have read this far. I am curious about your reactions, regardless of what they are.

Posted on Tuesday, August 29 2017 at 8:59 am by

Second Circuit Clarifies its Post-Salman Position, Affirms Insider Trading Conviction

By Paul Foley and John I. Sanders

On August 23rd, the Second Circuit issued its much-anticipated opinion in U.S. v. Martoma, affirming the 2014 insider trading conviction of S.A.C. Capital Advisors portfolio manager Matthew Martoma.[1] In doing so, it clarified an important point regarding what is required to convict a person who trades on a tip received from an insider. We believe this decision will have an immediate impact on how hedge fund portfolio managers and other investment advisers interact with third party resources.

Section 10(b) of the Securities Exchange Act of 1934[2] and Rule 10b-5[3] promulgated thereunder prohibit insider trading. The basic elements of insider trading are: (i) engaging in a securities transaction, (ii) while in possession of material, non-public information, (iii) in violation of a duty to refrain from doing so.

Under the classic theory of insider trading, a corporate insider trades in shares of his employer while in possession of material, non-public information (e.g., advance notice of a merger). In addition to the classic theory of insider trading, case law has extended the liability to persons who receive tips from insiders (i.e., individuals whose duty to refrain from trading is derived or inherited from the corporate insider’s duty). Thus, not only may insiders be liable for insider trading, but those to whom they pass tips, either directly (tippees) or through others (remote tippees) may be liable if they trade on such tips.

The seminal case involving tippee liability is Dirks v. SEC.[4] In Dirks, the U.S. Supreme Court held the following:

In determining whether a tippee is under an obligation to disclose or abstain, it is necessary to determine whether the insider’s “tip” constituted a breach of the insider’s fiduciary duty. Whether disclosure is a breach of duty depends in large part on the personal benefit the insider receives as a result of the disclosure. Absent an improper purpose, there is no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach.[5]

The question of what constituted a “personal benefit” was left ill-defined until the Second Circuit gave it shape in U.S. v. Newman.[6] Newman held that a tipper and tippee must have a “meaningfully close personal relationship” and that the insider information be divulged in exchange for “a potential gain of a pecuniary or similarly valuable nature” for the court to find the tipper had breached his fiduciary duty to the source.[7] For a period of time after the Second Circuit issued its opinion in Newman, it seemed that Martoma’s conviction was likely to be overturned.

Unfortunately for Martoma, the U.S. Supreme Court issued its opinion in U.S. v. Salman while Martoma’s appeal was pending.[8] In Salman, the U.S. Supreme Court flatly rejected certain aspects of the Newman holding and called others into question.[9] Accordingly, the Second Circuit held in Martoma that “Salman fundamentally altered the analysis underlying Newman’s ‘meaningfully close relationship’ requirement such that the ‘meaningfully close personal relationship’ requirement is no longer good law.”[10]

In Martoma, the court held that rather than looking at objective elements of the relationship between tipper and tippee, the proper inquiry is now whether the corporate insider divulged the relevant information with the expectation that the tippee would trade on it.[11] This is “because such a disclosure is the functional equivalent of trading on the information himself and giving the cash gift to the recipient.”[12]

Please contact us if you have any questions about the Second Circuit’s opinion in Martoma or the law concerning insider trading generally.

Paul Foley is a partner with Kilpatrick Townsend & Stockton’s Winston-Salem and New York offices. John I. Sanders is an associate based in the firm’s Winston-Salem office.

[1] U.S. v. Martoma, available at http://www.ca2.uscourts.gov/decisions/isysquery/71a89161-eec1-457e-b79b-a0d9503765c1/2/doc/14-3599_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/71a89161-eec1-457e-b79b-a0d9503765c1/2/hilite/.

[2] 15 U.S.C. 78j (2016).

[3] 17 CFR 270.10b-5 (2016).

[4] Dirks v. SEC, 463 U.S. 646 (1983).

[5] Id. at 647.

[6] U.S. v. Newman, 773 F.3d 438 (2d Cir. 2014).

[7] Id. at 452.

[8] Salman v. U.S., available at https://supreme.justia.com/cases/federal/us/580/15-628/opinion3.html.

[9] Id. at 10.

[10] U.S. v. Martoma, supra note 1, at 24.

[11] Id. at 25.

[12] Id.

Posted on Friday, July 14 2017 at 8:33 am by

Kokesh v. SEC: The U.S. Supreme Court Limits SEC Disgorgement Powers

By Paul Foley and John I. Sanders

Since the 1970s, courts have regularly ordered disgorgement of ill-gotten gains in SEC enforcement proceedings.[1] According to the SEC, this was done as a means to both “deprive . . . defendants of their profits in order to remove any monetary reward for violating” securities laws and “protect the investing public by providing an effective deterrent to future violations.”[2] Disgorgement has been one of the SEC’s most powerful tools in recent years.[3] Earlier this week, the Supreme Court issued an opinion that significantly limits the SEC’s ability to disgorge ill-gotten gains.[4]

The question before the Supreme Court in Kokesh v. SEC was whether disgorgement, as it has been used by the SEC, constitutes a “penalty.”[5] Under federal law, a 5-year statute of limitations applies to any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise.”[6] The SEC has long argued that disgorgement does not constitute a “penalty” and, therefore, is not subject to a 5-year statute of limitations. The Supreme Court unanimously rejected the SEC’s position by holding that disgorgement constitutes a “penalty.”[7] As a result, the SEC will be precluded from collecting ill-gotten gains obtained by the defendant more than five years before the date on which the SEC files its complaint.[8]

In the Kokesh case, the Supreme Court’s decision means that the defendant may retain $29.9 million of the $34.9 million in allegedly ill-gotten gains because that amount was received outside of the 5-year state of limitations.[9] The Kokesh decision is also likely to have a significant long-term impact on SEC enforcement proceedings by reducing the leverage the SEC can apply while negotiating settlements.

Paul Foley is a partner with Kilpatrick Townsend & Stockton’s Winston-Salem and New York offices.  John I. Sanders is an associate based in the firm’s Winston-Salem office.

[1] SEC v. Texas Gulf Sulphur Co., 312 F. Supp. 77, 91 (SDNY 1970), aff ’d in part and rev’d in part, 446 F. 2d 1301 (CA2 1971).

[2] Id. at 92.

[3] SEC, SEC Announces Enforcement Results for FY 2016 (Oct. 11, 2016), available at https://www.sec.gov/news/pressrelease/2016-212.html (illustrating that the SEC has obtained more than $4 billion in disgorgements and penalties in each of the three most recent fiscal years).

[4] Kokesh v. SEC, available at www.supremecourt.gov.

[5] Id. (“This case presents the question whether [28 U.S.C.] §2462 applies to claims for disgorgement imposed as a sanction for violating a federal securities law.”).

[6] 28 U.S.C. §2462 (2017).

[7] Kokesh v. SEC, supra note 4, available at www.supremecourt.gov. (“SEC disgorgement thus bears all the hallmarks of a penalty: It is imposed as a consequence of violating a public law and it is intended to deter, not to compensate.”).

[8] Id.

[9] Id.

Posted on Thursday, May 18 2017 at 11:03 am by

General Solicitations of Certain Regulation D “Private” Securities Offerings: SEC Affirms Zero-Tolerance Policy.

By Paul Foley and John I. Sanders

On March 29, 2017, the Securities and Exchange Commission (the “SEC”) issued a noteworthy opinion in In re KCD Financial Inc.,[1] a review of a FINRA disciplinary action.[2] While the opinion affirmed FINRA’s disciplinary action,[3] it also affirmed the SEC’s zero-tolerance policy regarding general solicitations made in the course of certain Regulation D offerings. Those relying on or contemplating relying on Regulation D exemptions from registration should review the SEC’s opinion.

Factual Background

KCD Financial, Inc. (“KCD”) is an independent broker-dealer.[4] In 2011, KCD signed an agreement with one of its affiliates (“Westmount”) under which it would solicit accredited investors for a particular private fund (the “Fund”) sponsored by Westmount.[5] Westmount did not plan to register the offering. Westmount instead planned to rely on a Rule 506(b) exemption from registration.[6]

Prior to KCD selling any interest in the Fund, Westmount issued a press release describing Fund.[7] Two Dallas newspapers published articles based on the press release and made the articles available on their respective public websites.[8] One of those newspaper articles was then posted on a public website belonging to a Westmount affiliate.[9] Westmount’s outside counsel informed Westmount that the newspaper articles constituted general solicitations, which are prohibited in Rule 506(b) offerings.[10]

After KCD and Westmount officers were told that the articles were general solicitations prohibited under Rule 506(b), they did not end the offering, register the securities, or seek to rely on an alternative exemption. Instead, KCD’s CCO and Westmount’s Vice President of Capital Markets instructed the representatives to sell interests in the Fund only to (i) those with an existing relationship to KCD or Westmount and (ii) accredited investors who had not learned of the offering through the general solicitations.[11] Under those guidelines, at least one person was refused an opportunity to purchases interests in the Fund.[12]

During a FINRA examination of KCD, the examiner found that the newspaper article about the offering had not been removed from Westmount-affiliated website.[13] Subsequently, FINRA filed a complaint against KCD alleging that the firm’s registered representatives sold securities that were unregistered and not qualified for an exemption from registration, thereby violating FINRA Rule 2010.[14] FINRA also alleged that KCD failed to reasonably supervise the offering, thereby violating FINRA Rule 3010.[15] FINRA’s Hearing Panel found that KCD violated those rules.[16] FINRA censured KCD and imposed a fine of $73,000.[17] The National Adjudicatory Counsel affirmed FINRA’s decision.[18] KCD then requested an SEC review.[19]

SEC Review

KCD admitted that the Fund interests it offered were not registered, but argued that offers were made pursuant to Rule 506(b).[20] The SEC rejected KCD’s contention,[21] finding that where a party relying on the Rule 506(b) exemption makes a general solicitation, the exemption then is unavailable “regardless of the number of accredited investors or the knowledge and experience of the purchasers who were not accredited investors.”[22] In this context, whether purchasers were accredited or had prior relationships with KCD and Westmount was “irrelevant to whether or not the newspaper articles constituted a general solicitation” and precluded reliance on Rule 506(b).[23]

KCD also argued, assuming the newspaper articles constituted general solicitations, it could still rely on a Rule 506(b) exemption because “KCD did not generally solicit any of the actual investors in the [Westmount] Fund.”[24] This argument confused the notion of what is prohibited under Rule 506(b). It is making an offer by general solicitation which precludes reliance on a Rule 506(b) exemption.[25] Whether a sale results directly from the general solicitation is irrelevant.[26]

Practical Implications

The SEC’s opinion affirms its view that exemptions from registration in securities offerings are narrowly construed and must be adhered to strictly.[27] Where, as here, the exemption prohibits a general solicitation, any general solicitation forever forfeits the issuer’s ability to rely on the exemption in making the offering (i.e., the toothpaste cannot go back into the tube).

Those making exempt offerings in reliance on Rule 504,[28] Rule 505,[29] and Rule 506(b)[30] should review their sales practices in light of the KCD opinion. In reviewing practices, issuers should look beyond the obvious means of making a general solicitation (e.g., a press release that is published by a widely-circulated newspaper). Websites and social media accounts of those participating in the offerings are equally capable of precluding use of a valuable registration exemption.

Paul Foley is a partner with Kilpatrick Townsend & Stockton’s New York and Winston-Salem, North Carolina offices.  John Sanders is an associate based in the firm’s Winston-Salem office.

[1] In re KCD Financial, Inc., SEC Release No. 34-80340 (March 29, 2017), available at www.sec.gov/litigation/opinions/2017/34-80340.pdf (hereinafter, SEC Opinion).

[2] In re KCD Financial, Inc., FINRA Complaint No. 2011025851501 (Aug. 3, 2016), available at http:www.finra.com (hereinafter, FINRA Opinion).

[3] SEC Opinion, supra note 1, at p. 1.

[4] Id., at p. 2.

[5] Id.

[6] Id.

[7] Id, at p. 3.

[8] Id.

[9] Id. at p. 4.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] FINRA Opinion, supra note 2, at p. 4.

[17] Id.

[18] Id.

[19] Id.

[20] SEC Opinion, supra note 1, at 2.

[21] Id.

[22] Id. at 7.

[23] Id. at 9.

[24] Id at 10.

[25] Id.

[26] Id. at 11

[27] Id. at 7.

[28] 17 CFR 230.504 (2017).

[29] 17 CFR 230.505 (2017).

[30] 17 CFR 230.506(b) (2017).

Posted on , May 18 2017 at 11:00 am by

SEC Amends Crowdfunding Rules

By Paul Foley and John I. Sanders

Under the Jumpstart our Business Startups Acts of 2012 (the “JOBS Act”), the Securities and Exchange Commission (the “SEC”) adopted rules allowing for securities-based crowdfunding in 2015.[1] The JOBS Act required the SEC to adjust dollar limits placed on the amount that could be invested or raised through securities-based crowdfunding at least every five years to account for inflation.[2] On April 5, 2017, the SEC issued a final rule adjusting those limits for the first time.[3] We encourage those interested in issuing securities through a securities-based crowdfunding offering to review the final rule and call us with any questions you may have.

Paul Foley is a partner with Kilpatrick Townsend & Stockton’s New York and Winston-Salem, North Carolina offices.  John Sanders is an associate based in the firm’s Winston-Salem office.

[1] SEC, Release No. 33-9974 (Oct. 9, 2015), available at https://www.sec.gov/rules/final/2015/33-9974.pdf.

[2] Id. at 15.

[3] SEC, Release No.33-10332 (April 5, 2017), available at https://www.sec.gov/rules/final/2017/33-10332.pdf.

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