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SEC new rule: ABS issuers and underwriters must disclose any third-party due diligence report

On August 27, 2014, as mandated by the Dodd-Frank Act, the Securities & Exchange Commission (the “SEC”) adopted several new rules and amendments designed to improve the quality of credit ratings and increase the accountability of Nationally Recognized Statistical Rating Organizations (“NRSROs”). The new rules, which become effective nine months after their publication in the Federal Register, significantly affect services in connection with asset-backed securities (“ABS”). Among other provisions, included is a requirement for ABS issuers and underwriters to disclose the findings and conclusions of any third-party due diligence report they obtain. The rule applies to both registered and unregistered offerings. Additionally, providers of ABS due diligence services must submit a written certification (signed by an individual who is duly authorized to make such a certification) to any NRSRO that is producing a credit rating regarding the ABS, and disclose information about the due diligence performed, along with a summary of the findings and conclusions, and identification of any relevant NRSRO due diligence criteria that the third-party intended to meet in performing the due diligence.

SEC defines “compensated solicitor” and “participation” under bad actor Rule 506(d)

As we reported previously, on September 23, 2013, new Rules 506(d) and (e) of Regulation D under the Securities Act and changes to Form D (“Bad Actor Rules”) went into effect, making all Rule 506 offerings subject to certain disqualification, disclosure and certification requirements.

In this blog, we want to bring to your attention the SEC’s compliance and disclosure interpretations (“C&DIs”) issued December 4, 2013, which, among other provisions, define what constitutes a “compensated solicitor” and “participation” in an offering, in case the SEC’s expanded guidance warrants an assessment of your particular services, especially if you are a professional advisor.

The CD&Is define “compensated solicitors” as “all persons who have been or will be paid, directly or indirectly, remuneration for solicitation of purchasers, regardless of whether they are, or are required to be, registered under Exchange Act Section 15(a)(1) or are associated persons of registered broker-dealers.”

According to the CD&Is, “participation in an offering is not limited to the solicitation of investors, and includes involvement in due diligence activities or the preparation of offering materials (including analyst reports used to solicit investors), providing structuring or other advice to the issuer in connection with the offering, and communicating with the issuer, prospective investors or other participants about the offering. To constitute ‘participation,’ such activities must be more than transitory or incidental–administrative functions, such as opening brokerage accounts, wiring funds, and bookkeeping activities, would generally not be deemed to be deemed as ‘participating’ in the offering.”

Proposed Regulation A rules have bad actor disqualification similar to Rule 506(d)

On December 2, 2013, the U.S. District Court for the Western District of Pennsylvania ruled that a combined disclosure and authorization form that contained a liability waiver which the employer gave to a group of former job applicants violates the Fair Credit Reporting Act (the “FCRA.”) The court determined that a significant portion of the 1,800 individuals in this class action are entitled to willful damages under the FCRA and could each receive the greater of his/her actual damages or $1,000 plus attorneys’ fees.

This is a second published decision to hold that liability waivers invalidate the disclosure requirements under the FCRA. The first ruling rendered in January 2012 in the U.S. District Court in Maryland found that “both the statutory text and FTC advisory opinions indicate that an employer violates the FCRA by including a liability release in a disclosure document.” Thus far, only the U.S. District Court for the Western District of North Carolina disagreed, deciding in August 2012 that the liability waiver included in the defendant employer’s combined disclosure and authorization form was kept sufficiently distinct from the disclosure language so as not to render it ineffective.    

Remedying Rule 506 “bad actor” disqualification through reasonable care

The SEC’s Rule 506 “bad actor” amendments went into effect September 23, 2013. As we reported previously, these amendments add Rule 506(d) to implement Regulation 926 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Under the rule, securities offerings involving certain “felons and other ‘bad actors'” are disqualified from the Rule 506 exemption unless the disqualification is waived or remedied through a “reasonable care” exception. (See Securities Act Release No. 9414, 78 Fed. Reg. 44,729; July 24, 2013).

The rule’s long list of disqualifying events – and an even longer list of covered persons – is raising consternation as issuers and practitioners come to grips with the challenges of compliance. A disqualification due to the presence of “bad actors” can be catastrophic, resulting in the loss of the exemption altogether, spilling into regulatory actions, litigation, and reputational issues. And any impediment to raising capital is likely to scare away investors.

The rule provides an exception from disqualification if the issuer is able to demonstrate that it did not know and, in the exercise of reasonable care, could not have known that a covered person with a disqualifying event participated in the offering. The SEC has not prescribed specific steps to establish reasonable care; however, it has indicated that the concept includes a factual inquiry in view of the particular facts and circumstances and other offering participants. Despite the procedural ambiguity, the message is clear that is not enough to show that the issuer was unaware of the disqualifying event – the issuer must establish that in exercising “reasonable care,” could not have known that a disqualification existed.

In anticipation of this ruling, SI has been including “disqualifying event” searches in many of its reports for over two years. Now that the ruling has gone into effect, SI also offers a specialized factual inquiry service to help our clients evidence “reasonable care” under the highest standards. For information, please contact Dave Lazar at 440-423-1157 or e-mail dlazar@scherzer.co or Jessica Staheli at 818-227-2598 or e-mail jstaheli@scherzer.co.

SEC approves JOBS Act requirement to lift general solicitation ban and adopts final rule to disqualify bad actors from certain offerings

The Securities and Exchange Commission (the “SEC”) today adopted a new rule implementing a JOBS Act requirement to lift the ban on general solicitation or general advertising for certain private securities offerings. In connection with this new rule, the SEC issued an amendment proposal requiring issuers to provide additional information about these offerings to better monitor the market with that ban now lifted. The proposal provides for additional safeguards as the market changes and new practices develop.

Continuing the momentum, the SEC also adopted a long-awaited rule  that disqualifies felons and other bad actors from participating in certain securities offerings as required by the Dodd-Frank Act. Under this final rule, an issuer cannot rely on the Rule 506 exemption if the issuer or any other covered person had what the SEC considers a “disqualifying event,” briefly described as a securities-related criminal conviction, court injunction or restraining order, final bar order, SEC disciplinary, cease-and-desist or stop order, suspension or expulsion from membership in a self-regulatory organization, or U.S. Postal Service false representation order.

The final rule provides an exception from disqualification when the issuer can show that it did not know and, in the exercise of reasonable care, could not have known that a covered person with a disqualifying event participated in the offering. The disqualification applies only for events that occur after the effective date of this rule. However, matters that existed before the effective date and that otherwise would be disqualifying are subject to a mandatory disclosure requirement to investors.

CFPB issues long-awaited rule on supervising non-banks that pose risks to consumers

On June 26, 2013, the Consumer Financial Protection Bureau (the “CFPB”) issued a final rule that establishes procedures to bring under its supervisory authority certain nonbanks whose activities pose risks to consumers. Non-banks subject to the rule are companies that offer or provide consumer financial products or services but do not have a bank, thrift, or credit union charter, and include a nonbank’s affiliate service providers. The final rule will be effective 30 days after its publication in the Federal Register.

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), the CFPB is authorized to supervise any nonbank, regardless of its size, that the CFPB has reasonable cause to determine “is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services.”

The CFPB has already finalized “larger participant” rules for the credit reporting and debt collection markets and has proposed such a rule for the federal and private student loan servicing market.

Final “bad actor” disqualification ruling long overdue

Over two years ago, Section 926 of the Dodd-Frank Act called for the SEC to impose “bad actor disqualification”(sometimes referred to as “bad boy disqualification”) on Rule 506 private placements. Under the proposed rule, which is long overdue, an issuer may not rely on Rule 506 exemptionfrom registration if certain individuals or entities associated with the offering have a disqualifying event in their past, such as a violation of securities law, state regulatory order or bar, or similar infraction.

Further, the JOBS Act, enacted last year, provided for the SEC to amend Rule 506 to lift the ban on general solicitation. This rulemaking is also past due, and anxious onlookers speculate that these changes to Rule 506 will get finalized at the same time. While there have been many comments to modify some of the rule’s overbroad applications, it is uncertain if the suggested changes will happen.

Notably, there is an important exception to the disqualification provisions. If an issuer exercises “reasonable care” in making a factual inquiry but is unable to uncover the disqualifying events despite having conducted the requisite due diligence, it will not necessarily lose the ability to rely on Rule 506. Although the proposed rules do not provide bright-line tests for establishing due diligence, they clearly point that the issuer has a duty to make a factual inquiry into the existence of disqualifying events. And depending on the circumstances, representations in agreements and questionnaires may not be adequate.  Searching public databases also may be required, and possibly “further steps” which have yet to be defined.

SI understands that the bad boy disqualifiers can stop an offering in its tracks immediately upon the final rule’s adoption. And no matter what the transaction, no one wants to be involved with a “bad boy.” For over a year, our proactive approach has been to include comprehensive searches of the disqualifying event elements in higher level background reports as a value-add. The very real risk that issuers could lose the Rule 506 exemption due to facts of which they are not even aware illustrates the power of effective and thorough due diligence.

Regulatory focus on corporate social responsibility

Corporate social responsibility (CSR) policies that promote good citizenship are being implemented or revised at a record pace. In response to concerns about labor exploitation in the developing world, many companies have joined the Ethical Trade Initiative (ETI), which has established corporate codes of practice implementing human rights, ethical labor practices and environmental protection standards. Many also have adopted the United Nations Global Compact “ten universally accepted principles in the areas of human rights, labor, environment and anti-corruption.”

High on the CSR priority list for SEC-listed companies that use conflict minerals “in the functionality of production” of a manufactured product is developing a compliance program that will meet the requirements of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Due from the SEC within the next few weeks, the final rule will have a direct impact on reporting requirements for about half of all publicly traded companies in the United States, mandating them to disclose in 10-K, 20-F, and 40-F filings whether they manufacture products containing conflict minerals (specified as gold, wolframite, casserite, columbite-tantalite and their derivative metals, which include tin, tungsten, and tantalum, that are mined in the DCR or its adjoining countries). These metals are used in a broad array of products, including electronics, jewelry, tools, engines, medical equipment, chemicals, packaging, etc. And although the regulation technically applies to public companies only, it will have a significant bearing on any company anywhere in the world, public or private that is within the public company’s supply chain.

Under the rule as proposed, among other requirements, the affected SEC-listed companies must conduct certain due diligence, as outlined below.

  1. Determine if conflict minerals/metals are used to make their products.
  2. Determine if the metals originated in the DRC or in neighboring countries. If they did not, a report must be issued on how the metals’ origins were determined.
  3. If the metals were from DRC or adjoining countries, if the source is unknown or if it is from scrap or recycled sources, a supply chain due diligence to determine the source(s) must be performed and the results provided in an independently audited report.

The rule is expected to require the above-noted first and second steps regardless of the metals’ origin. The third step, i.e., the disclosure of the products manufactured and facilities where DRC materials may have been used, etc. must be completed only if the DRC is identified as a source or if the source cannot be determined. If applicable, in addition to specific annual report disclosures and the inclusion of a conflict minerals report as an exhibit, the companies will have to indicate on their websites whether or not they use conflict minerals in their products or in those contracted to be manufactured on their behalf.

Of course, this Dodd-Frank provision is not the only regulatory effort that addresses the elimination of child and forced labor, slavery, and human trafficking within supply chains. Public pressures over these atrocities have led to related policymaking within U.S. local and state governments, and around the world. For example, in 2011, California enacted SB 861 which requires issuers that do business with the state to fulfill the public reporting obligations outlined in the upcoming SEC rules. Issuers that fail to meet these obligations will be prohibited from seeking procurement contracts with the state. In Maryland, a similar “conflict minerals” law under SB 551 will become effective October 1, 2012. Rhode Island and Massachusetts are considering parallel legislation.

Other U.S. efforts include California’s SB 657, known as the California Transparency in Supply Chains Act, which effective January 1, 2012, mandates retail sellers and manufacturers doing business in California with annual gross receipts exceeding $100 million to conspicuously and clearly disclose their efforts and policies for ensuring that their supply chains are free from human trafficking and slavery. On a municipal level, the City of Pittsburgh calls on companies from all sectors to favor in their electronics purchasing decisions products that have been verified as being free of conflict minerals. And among several major worldwide endeavors, is the European Commission’s support of the United Nations and Organization for Economic and Cooperation Development (OECD) due diligence guidelines and recommendations for responsible supply chain management.

Strong corporate responsibility policies are here to stay. A 2011 U.S. State Department press release urges companies to “…begin to exercise due diligence immediately in order to ensure a viable and conflict free supply chain…”

Whistleblower activity for SEC violations on the rise

The U.S. Senate reports that more than half of all uncovered frauds have originated from whistleblower tips. Since the SEC’s Office of the Whistleblower was launched in August 2011, officials have been dealing with close to 100 tips per day. And this number is expected to double in the coming years with Dodd-Frank’s provisions for monetary incentives and protection from retaliation.

While coming to grips with the complexities of Dodd-Frank, many companies and financial institutions are heightening their efforts to mitigate the potential liability from whistleblowing. Developing and evaluating existing risk management and compliance programs is now a priority. The programs established under the 2002 Sarbanes-Oxley Act may not be effective in this new regulatory environment, and may need to be modified or strengthened, with an emphasis on internal communications and investigations of possible violations. When determining if and how much leniency to grant an entity, the SEC notes that “the promptness with which entities voluntarily self-report their misconduct…is an important factor.”

According to a recent study published by the Association of Certified Fraud Examiners and the Institute of Internal Auditors, fraudulent acts by employees and outsiders rise during periods of economic stress. Crime experts say that fraud and other misconduct are committed primarily because of three factors, referred to as the Fraud Triangle, and involve financial pressure, opportunity, and rationalization. In these still challenging times, businesses of all types and sizes need to tighten their internal controls and be proactive in preventing wrongful acts. Allocating budgets for compliance programs which include compelling due diligence with a focus on background investigations, will provide a high return on the investment and ultimately protect the bottom line.

CFPB proposal would put larger debt collectors and credit reporting agencies under the same supervision process as banks

The Consumer Financial Protection Bureau (CFPB) on February 16, 2011 announced a
proposed rule to include debt collectors and consumer reporting agencies under its nonbank
supervision program.

Created by the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB is
authorized to supervise nonbanks in the specific markets of residential mortgage, payday
lending, and private education lending. For other nonbank markets of consumer financial
products or services, the CFPB must define “larger participants” by rule, which is due on
July 21, 2012.

Three types of debt collection agencies dominate the market: firms that collect debt owned
by another company for a fee, firms that buy debt and collect the proceeds for themselves,
and attorneys and law firms that collect debt through litigation. A single company may be
collecting through any or all of these activities. Under the proposed rule, debt collectors
with more than $10 million in annual receipts from collection activities would be subject to
supervision. The CFPB estimates that the proposed rule would cover approximately 175 debt
collection firms (or 4% of debt collection firms) which account for 63% of annual receipts
from the debt collection market.

The CFPB’s proposal also takes aim at the largest credit bureaus selling comprehensive
consumer reports, consumer report resellers, and specialty consumer reporting agencies.
Defined as companies that make more than $7 million annually from their consumer
business, the rule would affect 30 companies, and firms like Experian, TransUnion and
Equifax, that account for 94% of the industry’s business.

This is the CFPB’s first in a series of rulemakings to define larger participants. The CFPB
chose annual receipts as the criterion for both debt collection and consumer reporting
because it approximates participation in these two markets.

The proposed rule is open for comment for 60 days after the rule is published in the Federal
Register.

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