Mark Astarita, Esq. is a nationally recognized securities attorney who represents investors, financial professionals, issuers and financial firms in a wide variety of matters involving federal and state securities laws. He can be reached at firstname.lastname@example.org.
The state securities laws and the regulatory scheme has not changed much since 2001 when I published the first version of this Blue Sky Law introduction. While the SEC directly, and through its oversight of the FINRA and the various Exchanges, is the main enforcer of the nation’s securities laws, each individual state has its own securities laws and rules. These state rules are known as “Blue Sky Laws”.
The origin of the term is a bit unclear, but the first use of the term that we are aware of is in an opinion of Justice McKenna of the United States Supreme Court, in 1917. Justice McKenna wrote the Court’s opinion in Hall vs. Geiger-Jones Co., 242 U.S. 539 (1917), which was three cases, all dealing with the constitutionality of state securities regulations. Justice McKenna wrote
The name that is given to the law indicates the evil at which it is aimed, that is, to use the language of a cited case, “speculative schemes which have no more basis than so many feet of ‘blue sky'”; or, as stated by counsel in another case, “to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines and other like fraudulent exploitations.” Even if the descriptions be regarded as rhetorical, the existence of evil is indicated, and a belief of its detriment; and we shall not pause to do more than state that the prevention of deception is within the competency of government and that the appreciation of the consequences of it is not open for our review.
Unfortunately, Justice McKenna never gave a reference to the “cited case” that he referred to, and the Hall cases have become known as The Blue Sky Cases, and Justice McKenna as the author of the phrase.
While these laws vary from state to state, the laws require registration of securities offerings, and registration of brokers and brokerage firms. Each state has a regulatory agency which administers the law, typically known as the state Securities Commissioner. A list of state securities commissioners, and their addresses, is available in our Guide to State Securities Regulators.
While anti-fraud regulations are most commonly enforced by the SEC and the various SROs, the states also have the power and authority to bring actions against securities violators pursuant to state law. Each state has its own securities act, known colloquially as the “blue sky law”, which regulates both the offer and sale of securities as well as the registration and reporting requirements for broker-dealers and individual stock brokers doing business (both directly and indirectly) in the state, as well as investment advisers seeking to offer their investment advisory services in the state.
Recently, federal legislation was enacted which limited the ability of the states to review, limit or otherwise restrict the sale of most securities. The legislation was designed to eliminate the duplicative nature of the federal and state securities laws. Today, in most instances, the states authority to review registration of securities offerings that are offered on a national basis have been severely restricted. However, there are notice and filing requirements in each state, which must still be complied with. Additionally, the legislation did not affect the ability of the state regulators to conduct investigations and to bring fraud actions.opyright 2001 Mark J. Astarita. email@example.com
It is important to keep in mind that before a security is sold in a state, there must be a registration in place to cover the transaction, and, the brokerage firm, and the stock broker, must each be registered in the state, or otherwise exempt from the registration requirements.
With few exceptions, every offer or sale of a security must, before it is offered or sold in a state, be registered or exempt from registration under the securities, or blue sky laws, of the state(s) in which the security is offered and sold. Similarly, every brokerage firm, every issuer selling its own securities and an individual broker or issuer representative (i.e., finder) engaged in selling securities in a state, must also be registered in the state, or otherwise exempt from such registration requirements. Most states securities laws are modeled after the Uniform Securities Act of 1956 (“USA”). To date, approximately 40 states use the USA as the basis for their state blue sky laws.
However, although most blue sky laws are modeled after the USA, blue sky statutes vary widely and there is very little uniformity among state securities laws. Therefore, it is vital that each state’s statutes and regulations be reviewed before embarking upon any securities sales activities in a state to determine what is permitted, or not permitted, in a particular state. To make matters more complicated, while some states may have identical statutory language or regulations covering particular activities or conduct, their interpretation may differ dramatically from state to state. However, state Securities Commission staff are available to assist in answering questions regarding particular statutory provisions or regulations.
Fortunately, many types of securities, and many transactions in securities, are exempt from state securities registration requirements. For example, many states provide for transactional exemptions for Regulation D private offerings, provided there is full compliance with SEC Rules 501-503. However, through certain types of offerings or transactions may not require registration, many states require filings or place additional conditions on exemptions available for many different offerings for which exemptions are available. The best advice, then, is before offering any security for sale in any state, experienced Blue Sky counsel should be retained to review the applicable state blue sky laws and take any action necessary to permit the offering to be made in the particular state.
The National Securities Markets Improvement Act of 1996 (“NSMIA”) was enacted in October, 1996 in response to the states’ failure to uniformly regulate certain types of national securities offerings. Among other changes, NSMIA amended Section 18 of the Securities Act of 1933, as amended (the “Act”), thereby creating a class of securities – referred to as “covered securities” – the offer and sale of which (through licensed broker-dealers) are no longer subject to state securities law registration requirements. Covered securities include: securities listed (or approved for listing) on the NYSE, AMEX and the Nasdaq/National Market, and securities of the same issuer which are equal in rank or senior to such listed securities; mutual fund shares; securities sold to certain qualified purchasers (as yet not defined by the SEC); certain securities exempt under Section 3(a) of the Act (including government or municipal securities, bank securities and commercial paper); and securities exempt from registration under the Act if sold in transactions complying with Rule 506 of Regulation D under the Act. Although NSMIA preempts state securities registration requirements, NSMIA preserves the right of the states to investigate and prosecute fraud.
As a result of NSMIA, states may no longer require the registration of covered securities; however, states may, as permitted under NSMIA, require filings and the payment of fees for offers and sales in their state of covered securities other than those which are listed (or approved for listing) on the designated exchanges or securities senior to such securities (i.e.; preferred shares or debt securities of an issuer with common stock listed on the designated exchanges). Additionally, since NSMIA only preempts state securities registration requirements, broker-dealer and agent/salesperson registration requirements (applicable to individuals engaged in the offer and sale of covered securities) must still be examined to determine whether action is required to be taken in connection with a particular offering or transaction. Therefore, although covered securities are no longer subject to substantive state review, blue sky action with respect to offerings of covered securities is still necessary.
In the area of Broker-Dealer and Agent (stock broker) registration, the Blue Sky laws are equally convoluted, with each state having different requirements. Fortunately, many states have abandoned use of their own particular forms and submissions, and permit the registration filings for broker-dealers and agents to be made through the National Association of Securities Dealer’s Central Registory Depository system (CRD), and utilize the examinations conducted by the NASD for testing purposes.
However, even here, and despite the advent of the CRD (and now, Web CRD), many states insist on following their own particular regulatory procedures for registering both broker-dealer firms and their registered both broker-dealer firms and their registered employees have their own policies. For example, initial broker-dealer registrations may not be made through CRD in such states as California, Hawaii, Michigan, (others) certain states require certified or audited financials, which are not required by the NASD. Nearly every state requires a stock broker to take and pass the Series 63 exam, except Colorado, Florida, Louisiana, Maryland, Ohio and Vermont.pyright 2001 Mark J. Astarita. firstname.lastname@example.org
The myriad of state regulations continues to plague the securities industry, causing untold delays and inadvertent violations by even the most careful brokerage firm. For registered representatives, even a simple matter like changing brokerage firms can result in a loss of business, for the transfer of the registration from one broker-dealer to the next can take days or weeks.
In an effort to reduce those delays, the TAT system was introduced in 1984, which permits a broker to transfer his registration to another firm, assuming he does not have any disciplinary record without any delays, and gives the broker 21 days to complete the registration process for each particular state. However, even today, over 10 years later, only 20 states permit brokers to TAT their registration to a new firm, and to be immediately registered without the delays attendant in physically transferring the registration in every state.
As can be seen from even this brief overview, the State Blue Sky laws are a complicated web of regulations, from 50 different jurisdictions. Add to that mix a complex series of SEC rules and regulations, and regulations from the NASD and the various securities exchanges, and one can well imagine why the securities industry is indeed the most highly regulated industry in the country.