United States securities regulation
Securities regulation in the United States is the field of U.S. law that covers transactions and other dealings with securities. The term is usually understood to include both federal and state-level regulation by governmental regulatory agencies, but sometimes may also encompass listing requirements of exchanges like the New York Stock Exchange and rules of self-regulatory organizations like the Financial Industry Regulatory Authority.
On the federal level, the primary securities regulator is the Securities and Exchange Commission. Futures and some aspects of derivatives are regulated by the Commodity Futures Trading Commission. Understanding and complying with security regulation helps businesses avoid litigation with the SEC, state security commissioners, and private parties. Failing to comply can even result in criminal liability.
Overview
The SEC was created by the Securities Exchange Act of 1934 to enforce the Securities Act of 1933. The SEC oversees several important organizations: for example, FINRA, a self-regulatory organization, is regulated by the SEC. FINRA promulgates rules that govern broker-dealers and certain other professionals in the securities industry. It was formed when the enforcement divisions of the National Association of Securities Dealers, FINRA, and the New York Stock Exchange merged into one organization. Similarly, the Securities Investor Protection Corporation is overseen by the SEC.All brokers and dealers registered with the SEC under, with some exceptions, are required to be members of SIPC and are subject to its regulations.
The laws that govern the securities industry are:
- Securities Act of 1933 – regulating distribution of new securities
- Securities Exchange Act of 1934 – regulating trading securities, brokers, and exchanges
- Trust Indenture Act of 1939 – regulating debt securities
- Investment Company Act of 1940 – regulating mutual funds
- Investment Advisers Act of 1940 – regulating investment advisers
- Sarbanes-Oxley Act of 2002 – regulating corporate responsibility
- Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 – regulating trade, credit rating, corporate governance, and corporate transparency
- Jumpstart Our Business Startups Act of 2012 – regulating requirements for capital markets
State laws governing issuance and trading of securities are commonly referred to as blue sky laws and mostly deal with fraud and fraud investigation privileges, registration of securities, and registration of broker-dealers. In general, states allow injunctions to stop businesses from potentially fraudulent activity and states give broad investigative power, generally to the attorney general, to investigate fraudulent activity.
Securities Act of 1933
The Securities Act of 1933 regulates the distribution of securities to public investors by creating registration and liability provisions to protect investors. With only a few exemptions, every security offering is required to be registered with the SEC by filing a registration statement that includes issuer history, business competition and material risks, litigation information, previous experience of officers/directors, compensation of employees, an in-depth securities description, and other relevant information. The price, amount, and selling method of securities must also be included in the registration statement. This statement is often written with the assistance of lawyers, accountants, and underwriters due to the complexity and large amount of information required for a valid registration statement. After a registration statement is successfully reviewed by the SEC, the prospectus selling document provides all the relevant information needed for investors and security purchasers to make an informed financial decision. This document will include both favorable and unfavorable information about a security issuer, which differs from the way securities were exchanged before the stock market crash. Section 5 of the 1933 Act describes three significant time periods of an offering, which includes the pre-filing period, the waiting period, and the post-effective period. If a person violates Section 5 in any way, Section 12 imposes a liability that allows any purchaser of an illegal sale to get the remedy of rescinding the contract or compensation for damages. Criminal liability is determined by the United States attorney general, and intentional violation of the 1933 Act can result in five years in prison and a $10,000 fine.Securities Exchange Act of 1934
The Securities Exchange Act of 1934 is different from the 1933 Act because it requires periodic disclosure of information by the issuers to the shareholders and SEC in order to continue to protect investors once a company goes public. The public issuers of securities must report annually and quarterly to the SEC, but only annually to investors. Under this law, public issuers are required to register the particular class of securities. The registration statement for the 1934 Act is similar to the filing requirement of the 1933 Act only without the offering information. Another major reason for the implementation of the 1934 Act was to regulate insider securities transactions to prevent fraud and unfair manipulation of securities exchanges. In order to protect investors and maintain the integrity of securities exchanges, Section 16 of this law states that statutory insiders must disclose security ownership in their company 10 days prior and are required to report any following transactions within two days. A corporation officer with equity securities, a corporation director, or a person that owns 10% or more of equity securities is considered to be a statutory insider that is subject to the rules of Section 16. Anyone that intentionally falsifies or makes misleading statements in an official SEC document is subject to liability according to Section 18, and people relying on these false statements are able to sue for damages. The defendant must prove they acted in good faith and was unaware of any misleading information. Rule 10b-5 allows people to sue fraudulent individuals directly responsible for an omission of important facts or intentional misstatements. The SEC does not have the authority to issue injunctions, but it does have the authority to issue cease and desist orders and fines up to $500,000. Injunctions and ancillary relief are achieved through federal district courts, and these courts are often notified by the SEC.History
Securities regulation came about after the stock market crash that occurred in October 1929. Before the Wall Street Crash of 1929, there was little regulation of securities in the United States at the state and federal level. An economic depression followed the Wall Street Crash of 1929, which motivated President Franklin Roosevelt to create laws regulating securities transactions during his famous "first 100 Day” period of his New Deal. Congress discovered that the stock market crash was largely due to problems with securities transactions, including the lack of relevant information about securities given to investors and the absurd claims made by the sellers of securities in companies that did not even exist yet. This lack of information lead to a disclosure scheme that requires sellers of securities to disclose pertinent information about the company to investors so that they are able to make wise financial decisions. The crash spurred Congress to hold hearings, known as the Pecora Commission, after Ferdinand Pecora.Prior to the Securities Act of 1933, securities were mainly regulated by state laws, which are also known as blue sky laws. After the Pecora hearings, Congress passed the Securities Act of 1933 prescribing rules for the interstate sales of securities, and made it illegal to sell securities in a state without complying with that state's laws. This statute broadly defines a security as “any note, stock, treasury stock, security future, security-based swap, bond, debenture, evidence of indebtedness, certificate of interest, or participation in any profit-sharing agreement.” In simpler terms, a security is a medium of investment that creates a certain level of financial obligation. The statute requires a publicly traded company to register with the U.S. Securities and Exchange Commission. The registration statement provides a broad range of information about the company and is a public record. The SEC does not approve or disapprove the issue of securities, but rather permits the filing statement to "become effective" if sufficient required detail is provided, including risk factors. The main objective of the act was to eliminate information gaps with two methods: first, companies were required to give investors financial and other pertinent information about the securities offered, and second, Congress disallowed fraudulent information and other misinformation in the sale of securities. The company can then begin selling the stock issue, usually through investment bankers.
The following year, Congress passed the Securities Exchange Act of 1934, to regulate the secondary market trading of securities. Initially, the 1934 Act applied only to stock exchanges and their listed companies, as the name implies. In the late 1930s, it was amended to provide regulation of the over-the-counter market. In 1964, the Act was amended to apply to companies traded in the OTC market. Overall, these first two statutes served to regulate the exchange of securities, require the disclosure of information, and inflict consequences on individuals that do not disclose information properly, whether it be intentional or erroneous. These laws were the first of many to rebuild investor confidence and protection.
The government continues to reform security regulation. In October 2000, the SEC issued the Regulation Fair Disclosure, which required publicly traded companies to disclose material information to all investors at the same time. Reg FD helped level the playing field for all investors by helping to reduce the problem of selective disclosure. In 2010, the Dodd–Frank Wall Street Reform and Consumer Protection Act was passed to reform securities law in the wake of the 2008 financial crisis. The most recent regulation came in the form of the Jumpstart Our Business Startups Act of 2012 which worked to deregulate capital markets to reduce cost of capital for companies.
Over the years the courts formed United States securities case law. Some notable decisions include the 1988 decision by the Supreme Court of the United States in Basic Inc. v. Levinson, which allowed class action lawsuits under SEC Rule 10b-5 and the "fraud-on-the-market" theory, which resulted in an increase in securities class actions. The Private Securities Litigation Reform Act and the state model law Securities Litigation Uniform Standards Act was a response to class actions.