More On Legal & Compliancefrom The Advisor's Professional Library
- Differences Between State and SEC Regulation of Investment Advisors States may impose licensing or registration requirements on IARs doing business in their jurisdiction, even if the IAR works for an SEC-registered firm. States may investigate and prosecute fraud by any IAR in their jurisdiction, even if the individual works for an SEC-registered firm.
- Anti-Fraud Provisions of the Investment Advisers Act RIAs and IARs should view themselves as fiduciaries at all times, whether they meet the legal definition or not. Deviating from the fiduciary standard of full disclosure while courting clients may cause the advisor significant problems.
As Ohio securities commissioner, I protect Main Street investors by bringing disciplinary actions against licensed individuals who engage in dishonest or unethical practices. I also work with many Main Street businesses and their counsel, helping them to understand the various options for raising capital under state and federal law.
Like my colleagues in other states, I have no interest in throwing up needless barriers to economic development.
Drawing upon our experience with small businesses that want to create jobs, states are committed to exploring new and innovative ways of fostering small business capital formation. But our experience with investors tells us that we also need to create an environment in which investors feel sufficiently protected.
The trick is to balance the legitimate interests of investors with the legitimate goals of entrepreneurs, and to adopt policies that are fair to both.
Under my presidency, NASAA is embarking upon a campaign for “smarter regulation” – regulation that takes advantage of technology to make the offering process more efficient for small businesses without sacrificing important protections for investors.
A first step in this direction involves Regulation A+.
When a company wants to raise capital by selling securities, the company must first register those securities with the government unless the securities are sold in a way that qualifies for an exemption from the registration process. Title IV of the JOBS Act requires the SEC to adopt a rule to provide an exemption for certain offerings up to $50 million. Because of its similarity to the current exemption under Regulation A, which is capped at only $5 million, this new exemption is commonly referred to as Regulation A+.
These offerings will be exempt from SEC registration under the new Section 3(b)(2) of the Securities Act of 1933, but they will be subject to registration at the state level unless the securities are listed on a national securities exchange or sold to a qualified purchaser as defined by the SEC.
Given the risky nature of investments in startups, and the fact that the states have traditionally been the primary regulator of small offerings, NASAA believes state oversight of these offerings is essential. However, we recognize the need to change some of our longstanding policies to make Reg A+ successful.
Toward that end, a NASAA project group has consulted with a task force of the American Bar Association to develop a proposal that peels back some of our normal guidelines to accommodate this new type of offering.
As part of the proposal, we have designed a multistate review process in which one or two states will take a lead role in reviewing a registration application and working through any deficiencies with the company issuing the securities.
In addition, we are developing a multistate electronic filing platform that will allow one-stop filing with all states, and we intend to build out that system to accommodate Reg A+ filings. Think of it as the equivalent of a CRD/IARD system for multistate offerings for the corporation finance world.
Earlier this week, NASAA released for public comment a proposal to establish this new multistate review program.
As NASAA moves through this process, we will continue to coordinate and communicate with the SEC in an effort to keep both federal and state requirements in sync.
State securities regulators are committed to helping Regulation A+ achieve its fullest potential.
By working with the ABA and other interested parties, NASAA is attempting to strike the best possible balance so that Regulation A+ will be an attractive option for both the small business that needs capital and the investor who is asked to provide it.
If we are successful in striking such a balance, we believe that shrewd investors and securities professionals will soon see that state review of these offerings generally yields safer opportunities than are available in the “Wild West” of Rule 506, and small businesses will find that smart, efficient, 21st century regulation can be beneficial for their capital formation efforts.