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Preparation of the Registration Statement

The Securities Act of 1933, as amended (the "Securities Act"), prohibits anyone from publicly selling or offering to sell any security unless that security is the subject of a registration statement that has been declared effective by the Securities and Exchange Commission (the "SEC"...

Managing SEC 10-K Inquiries

Situation: As a result of Sarbanes-Oxley, the Securities and Exchange Commission (SEC) is required to review systematically the filings for all public companies, including the 10-K, and began doing so in 2004. During a review process, the SEC may issue comment letters asking companies... Read the...

Revisiting Absolute Immunity Protection for SRO Advertising & Marketing Activities

In Weissman v. Nat’l Ass’n of Sec. Dealers, Inc. the U.S. Court of Appeals for the Eleventh Circuit held that NASD and NASDAQ were not entitled to absolute immunity from civil damages claims challenging certain alleged for-profit, commercial activities. The plaintiff, who purportedly purchased...

Recent Enforcement Actions Reinforce the Need for a Dynamic Compliance Program and Reflect a Growing Impatience With Inadequate Supervisory Programs

Two recent enforcement actions, one by the Securities and Exchange Commission ("Commission") against Consulting Services Group, LLC (“CSG”), an investment adviser, and one by the Financial Industry Regulatory Authority (“FINRA”) against Franklin Ross, Inc., a broker...

10b5-1 Plan Abuse: Practical Steps to Detect and Prevent

Reminiscent of the 1980s, the heydey of Wall Street protagonist Gordon Gekko, along with real-life Wall Street insiders (and eventual felons) Ivan Boesky and Michael Milkin, who mesmerized the securities industry, today's equity markets are soaring and public companies are reaping extraordinary benefits...

Overview of Federal Securities Laws

Securities transactions are subject to regulation under both federal and state law. Since the federal securities laws are based on Congress' power to regulate interstate commerce, they generally apply only to transactions involving "the use of any means or instruments of transportation or communication...

Continuous Reporting Requirements under the Exchange Act of 1934

The following companies are subject to the continuous reporting requirements of the Exchange Act. A. Any company with securities registered under the Exchange Act (referred to as Section 12 companies) and B. Any issuer who has had a registration statement effective under the Securities Act, in...

Overview of Tender Offers

Various types of transactions may implicate the tender offer rules, including acquisition transactions, debt or equity repurchases and certain debt restructurings. As such, practitioners should have a general familiarity as to what may constitute a tender offer and some of the rules applicable to tender...

A (Very Brief) Encyclopedia of Securities Fraud

During the cacophony of a Friday evening happy hour at a crowded bar in downtown Washington, D.C. not too long ago, I could not help but overhear a loud conversation between a man and woman standing next to me. Being in the nation's capital, it was easy to peg the two as lawyers--nice suits, well...

Preparing the New MD&A

Management's Discussion and Analysis of Financial Condition and Results of Operations ("MD&A") is a dynamic disclosure vehicle that adapts to meet changing regulatory concepts and internal and external developments affecting a company. This is illustrated by the SEC's December 2003...

Understanding IPOs

An "initial public offering" (IPO) is typically used when a business decides to "go public" to raise capital by offering ownership interests in the company to the public at large. The federal securities laws require the company to file a "prospectus" to disclose to investors...

Antifraud, the Internet, Your Web Site, and the Blogosphere

SUMMARY : Since the 2000 Electronic Release, company Web sites have progressed to include blogs, shareholder forums and a variety of other information of interest to investors -- information produced both by the company and third-parties. The release of Commission Guidance on the Use of Company Web Sites...