Federal Securities Law, a Securities Lawyer Guide

The SEC, FINRA, the States, and much more

Mark J. Astarita is a nationally known securities attorney with over 30 years of experience representing investors and financial professionals across the country in regulatory investigations, arbitration and litigation. If you have a securities law question, call 212-509-6544

Introduction

The history of the securities regulation and federal securities law are well beyond the scope of this work, and the reader is commended to any one of a number of books in the area. One of the best known, and often cited treatise on the topic is Loss and Seligman, Securities Regulation, a multi-volume treatise on the subject, published by Little Brown & Co in New York City. A single volume version is also available, and can be ordered online.

For purposes of this work, it is sufficient to note that the federal securities laws are in reality a myriad of rules and regulations of 55 different regulatory agencies, including the Securities Commission in each of the fifty States, the District of Columbia, Puerto Rico and Guam, as well as the Securities and Exchange Commission, the Financial Industry Regulatory Authority, and any of the regional exchanges of which he or his firm is a member.

While this morass is in reality a series of similar, and overlapping regulations, the vast number of agencies is pointed out as a reminder that there are thousands of persons who are watching the industry, some more diligently than others, but the mere size of these entities is often enough to cause problems for the securities professional, as noted throughout this work.

Leaving the specifics of the regulations to later chapters, it is sufficient to note that the vast majority of securities regulations are aimed at one goal – to promote fair and full disclosure of all material information relating to the markets, and to specific securities transactions, including all aspects of market trading, as well as the financing and reporting by public companies. While it may seem at times that specific regulations go well beyond such goals, that is the true goal of the regulatory scheme, and an underlying principle that should guide every market professional in his dealings with the industry, and the public, for, while no simple method of compliance is guaranteed, a policy of full disclosure will prevent most regulatory mishaps, certainly on the retail side of the business.

Federal Securities Laws

The federal securities laws are comprised of a series of statutes, which in turn authorize a series of regulations promulgated by the government agency with general oversight responsibility for the securities industry, the Securities and Exchange Commission.

The two main federal statutes are the Securities Act of 1933 and the Securities Exchange Act of 1934. Generally speaking, the ’33 Act governs the issuance of securities by companies, and the ’34 Act governs the trading, purchase and sale of those securities. Each has a wealth of regulations promulgated by the Securities and Exchange Commission, as well as regulations adopted by FINRA and the various states

Links and descriptions of the various federal and state statutes and rules are available at Securities Regulations, Statutes and Rules.

The Securities Act of 1933

The ’33 Act governs the initial issuance and registration of securities, as opposed to the Securities Exchange Act of 1934 which governs financial reporting, the various stock exchanges and the registration of people involved with the sale of securities.

These disclosure policies are the set of rules and regulations governing the activities of entities which have control of investor’s funds. 

The Securities Exchange Act of 1934

The full text of the 1934 Act, which primarily governs the purchase and sale of securities, securities brokerage firms and securities exchanges.

The 1934 Act is not a model of clarity, and the SEC has historically used its authority under the Act to fill gaps in the law. It has also exercised its authority to issue regulations that clarify and supplement the law and is often accused of creating regulations by litigation, rather than the required federal rule making process.

Investment Company Act

The Investment Company Act of 1940 was signed into law by President Roosevelt in 1940. It was created to protect investors from unscrupulous managers and companies. The Investment Company Act, which regulates mutual funds and other investment companies, make specific disclosures regarding their management, fees, investment objectives, risks, performance, and expenses to the public.

Investment Advisers Act of 1940

The Investment Adviser’s Act provides the rules and regulations regarding the conduct of and disclosures by registered investment advisers. Generally speaking, and there are exceptions, an investment adviser is a person or entity who provides investment advice for compensation. The SEC typically regulates investment advisers that have assets under management in excess of $100,000,000. Investment advisers that do not meet this threshold generally are regulated by the states.

Both the SEC and the states may require certain advisers to hedge funds, venture capital funds, and other private funds that are not required to be registered to instead file reports with them.

In 1996 Congress amended the Investment Advisers Act of 1940 to require that the SEC establish a readily accessible electronic process to respond to public inquiries about investment advisers and their disciplinary information. The SEC created the Investment Adviser Public Disclosure website and database, which is available and searchable by the public

Securities Investor Protection Act of 1970

The Securities Investor Protection Act of 1970 was created by Congress in response to a number of failures of some brokerage firms in the 1960s . A significant problem was created as the cash and securities customers that were held at these firms were lost, or tied up in lengthy bankruptcy proceedings. In addition to mounting customer losses and the subsequent erosion of investor confidence, Congress was concerned with a possible “domino effect” involving otherwise solvent brokers that had substantial open transactions with firms that failed.

Congress enacted the SIPA in reaction to this growing concern. The goal was to prevent the failure of more brokerage houses, restore investor confidence in the capital markets, and upgrade the financial responsibility requirements for registered brokers and dealers. Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 414 (1975).

Congress designed the SIPA to apportion responsibility for carrying out the various goals of the legislation to several groups. Among them are the SEC, various securities industry self-regulatory organizations, and SIPC. The SIPA was designed to create a new form of a liquidation proceeding. It is applicable only to member firms and was designed to accomplish the completion of open transactions and the speedy return of most customer property. 

SIPA establishes a Securities Investor Protection Corporation, commonly known by the acronym “SIPC”. SIPC is a non-profit membership organization, whose members include all brokers or dealers who are members of a national securities exchange or are otherwise registered as brokers or dealers under 15 U.S.C. A, § 78o (b). Unless a broker or dealer falls within one of the exceptions contained in 78ccc(a)(2)(B), membership in SIPC is mandatory.

SIPC’s main function is to step in to liquidate a broker or dealer when customers’ assets are in danger and to protect a customer up to a total amount of $50,000 represented by proven claims to cash and securities expected to be in the hands of the broker or dealer. But no more than $20,000 represented by claims to cash can be recovered under the protective plan of SIPC, though the claim to securities may exceed this limit.

The National Securities Markets Improvement Act of 1996 (NSMIA)

National Securities Markets Improvement Act of 1996 amended Section15(h) of the Securities Exchange Act of 1934.  The Act made federal law controlling in certain aspects of the regulation of broker-dealers, such as record-keeping, financial standards, and operating requirements.  In addition, the NSMIA amended the Securities Act of 1933 so that certain types of securities are no longer subject to state registration laws.  However, offers and sales must still be registered, market participants must still register per a state’s blue skies laws, and fraud laws are still available as causes of action for individual investors.

Sarbanes-Oxley Act of 2002

Sarbanes-Oxley is a federal statute that was adopted as a reaction to a number of corporate and accounting scandals in the late 1990s and early 2000s. This Act amended numerous securities and investment statutes and created new or expanded requirements for all U.S. public company boards, management, and public accounting firms. There are also a number of provisions of the Act that also apply to privately held companies, such as the willful destruction of evidence to impede a federal investigation. The Act covers the responsibilities of a public corporation’s board of directors, adds criminal penalties for certain misconduct, and required the SEC to create regulations to define how public corporations are to comply with the law.

Dodd-Frank Wall Street Reform and Consumer Protection Act

Dodd-Frank was enacted on July 21, 2010. The law was a reaction to the turmoil of the late 2000s and made changes that affected virtually all federal financial regulatory agencies and almost every part of the nation’s financial services industry. 

The Act is categorized into 16 titles and it requires that regulators create 243 rules, conduct 67 studies, and issue 22 periodic reports.

The stated aim of the legislation is:

To promote the financial stability of the United States by improving accountability and transparency in the financial system, to end “too big to fail,” to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services practices, and for other purposes.

Researching Investment Rules and Regulations

Those of you searching for federal securities law are well advised to start by reading a treatise on the subject, rather than the statutes themselves since the statutes are only the start of the climb into securities laws.

For those brave souls who wish to jump right into it, the regulations under each Act are on the Web and we have provided links to the statutes and rules here, as well as at Securities Rules and Regulations. As stated elsewhere, be sure to consult an attorney before relying on those rules, and the text and the interpretations of those rules are in a constant state of flux.

Secondary Sources and Collections

The SEC’s Office of Investor Education and Advocacy has issued a number of useful resources for investors. The SEC’s website offers a variety of free educational and informational resources, including investor bulletin boards, guides, and publications, as well as a searchable database of SEC no-action letters.

The Commission’s investor publications include:

Section 10b-5 and Rule 10b-5

The most well-known federal securities law is Rule 10b-5, promulgated pursuant to Section 10b of the 34 Act. The Rule is the most often used Rule in the area of securities law, and almost every SEC v. Texas Gulf Sulphur Co. (1971) -The court stated that anyone in possession of inside information must either disclose the information or refrain from trading. 

Dirks v. Securities and Exchange Commission (1983). The Supreme Court held that those who receive inside information from an insider are liable if they had reason to believe that the tipper had breached a fiduciary duty in disclosing confidential information. 

SEC vs. Materia (1984), a case where the “insider” was represented by New York Securities Lawyer Mark Astarita and his partner, is the case that first introduced the misappropriation theory of liability for insider trading. Materia, a financial printing firm proofreader, and clearly not an insider was found to have determined the identity of takeover targets based on proofreading tender offer documents in the course of his employment. After a three-week trial, the district court found him liable for insider trading, and the Second Circuit Court of Appeals affirmed holding that the theft of information from an employer, and the use of that information to purchase or sell securities in another entity, constituted fraud in connection with the purchase or sale of a security. This was the first use of the misappropriation theory of insider trading,  expanded insider trading liability to corporate “outsiders” and was eventually adopted by the Supreme Court.

United States v. Carpenter (1986) -the court found liability for a trader who received information from a journalist rather than from the company itself. The journalist R. Foster Winans was also convicted, on the grounds that he had misappropriated information belonging to his employer, the Wall Street Journal. In that widely publicized case, Winans traded in advance of “Heard on the Street” columns appearing in the Journal. 

The Court stated in Carpenter: “It is well established, as a general proposition, that a person who acquires special knowledge or information by virtue of a confidential or fiduciary relationship with another is not free to exploit that knowledge or information for his own personal benefit but must account to his principal for any profits derived therefrom.”

United States v. O’Hagan (1997). The Supreme Court adopted the misappropriation theory of insider trading from EC Rule 10b5-2, which defined trading “on the basis of” inside information as any time a person trades while aware of material nonpublic information. It is no longer a defense for one to say that one would have made the trade anyway. The rule also created an affirmative defense for pre-planned trades known as 10b-5 plans.

Morgan Stanley v. Skowron, (2013) The New York federal court held that a hedge fund’s portfolio manager engaging in insider trading in violation of his company’s code of conduct, which also required him to report his misconduct, must repay his employer the full $31 million his employer paid him as compensation during his period of faithlessness.  The court called insider trading the “ultimate abuse of a portfolio manager’s position”.  The judge also wrote: “In addition to exposing Morgan Stanley to government investigations and direct financial losses, Skowron’s behavior damaged the firm’s reputation, a valuable corporate asset.

United States v. Newman (2014), the United States Court of Appeals for the Second Circuit cited the Supreme Court’s decision in Dirks, and ruled that for a tippee (a person who used the information they received from an insider) to be guilty of insider trading, the tippee must have been aware not only that the information was insider information, but must also have been aware that the insider released the information for an improper purpose (such as a personal benefit). The Court concluded that the insider’s breach of a fiduciary duty not to release confidential information ”in the absence of an improper purpose on the part of the insider”is not enough to impose criminal liability on either the insider or the tippee. 

State Securities Laws

While the SEC directly, and through its oversight of FINRA and the various Exchanges, is the main enforcer of the nation’s securities laws, each individual state has its own securities regulatory body, 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.

The various state securities regulators have most of their impact in the area of registration of securities brokers and dealers, and in the registration of securities transactions. For further information on the state regulatory scheme, and its impact on market participants, see Introduction to the Blue Sky Laws.

Common Law and the Securities Markets

In addition to the varied securities rules and regulations enacted by statute, there is a large body of case law, and decisions by judges, which impact severely on the securities industry. Briefly, there is the concept of common law fraud, and in theory, if perchance a particular act did not fall within the scope of the federal securities laws, the actor may still be subject to a fraud claim under the common law. In some states, and in certain circumstances stock brokers may be considered to be fiduciaries to their customers. That is, they are expected to conduct themselves with a higher degree of care than would the ordinary person. Additionally, the common law notions of contract and negligence also find their way into the securities laws, for each purchase and sale of a security is in reality a contract, and each transaction between market participants, whether in the financing of an IPO, or in the customary stock purchase with a broker, can involve issues of negligence law. For an example of how the common law interfaces with the securities laws and securities transactions, see, Customer Disputes.

Federal Securities Law Violations

Later versions of this document will include a discussion of the various types of securities law violations that occur under federal law, including insider trading, market manipulation, fraudulent financial statements, and similar topics.

–Mark J. Astarita, Esq.

Louis Loss has long been the top author in the area of federal securities law and securities regulations. Loss’  treatise is a staple in every securities attorney’s library. His single-volume version, Fundamentals of Securities Regulation is an excellent resource for the layman, as well as for the attorney who does not practice securities law every day. Follow the link, and you can order it online, at a discount, from Amazon.com.

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