Against the backdrop of emerging growth companies created by the JOBS Act, SEC Chair Mary Schapiro provided a detailed response to letters from House Oversight Committee Chair Darrell Issa (R-CA) on reform of the IPO regulatory regime. The SEC staff is reviewing the communications rules applicable to all registered offerings, said the SEC Chair, who asked the staff to consider using a concept release to gain insight about further reform from companies, investors and other market participants. At the same time, the SEC is monitoring the impact of the JOBS Act which, in her view, is destined to make significant changes to the way IPOs are conducted, and the permissible communications in both IPOs and registered offerings. Although Chairman Issa asked some questions about the Facebook IPO, Chairman Schapiro said that she could not address questions about a specific registrant or transaction.
Chairman Schapiro noted that approximately 90 percent of the IPO issuers in 2011 would have been considered emerging growth companies had the JOBS Act been in place at that time, which means that emerging growth flexibility is expected to have broad impact. But, she added, it is not known if broker-dealers will take advantage of the changes wrought by the Act allowing offering participants to publish research during an offering for an emerging growth company. The SEC has not observed this practice in the IPOs that have been competed since the enactment of the JOBS Act, said the Chair.
Chairman Issa questioned regulatory impediments to the use of alternative pricing methods, such as modified Dutch auctions, which he indicated could result in a more efficient price discovery process and a more market-based price for IPO securities. Chairman Schapiro pointed out that the federal securities laws neither prescribe nor restrict the manner in which the price of securities is determined or the underwriting arrangements that must be used in an IPO.
In fact, she noted that there have been 22 auction-based IPOs registered with the SEC, with the first being conducted in 1999. Despite the availability of alternative pricing methods, the method overwhelmingly chosen by US companies for the distribution of securities in an IPO is through a syndicate of investment banking firms engaging in a marketing and book-building process, who then agree with the company, on a firm commitment basis, to purchase the securities at a discount from the IPO price and resell them to investors at the IPO price.
The SEC Chair also addressed Chairman Issa’s concerns that SEC communications rules for IPOs, and the liability provisions of the Securities Act, create barriers to communications with investors in a way that creates an advantage for institutional investors over retail investors. Chairman Schapiro noted that the traditional emphasis on the statutory prospectus as the primary source of information for investors, and 1933 Act liability associated with the information in that prospectus, was intended to encourage widespread dissemination of a reliable and thorough source of information about the issuer and the offering. She also noted that over the years the SEC has taken steps to facilitate continued communications related to public offerings, including IPOs. In 2005, for example, the SEC liberalized an issuer’s ability to communicate during public offerings.
Chairman Schapiro does not believe that the SEC communications rules unduly inhibit price discovery in the IPO process. While the prospectus remains the primary document, SEC rules allow companies and underwriters to supplement the prospectus with additional information as long as it is filed with the Commission and subject to the same review as the prospectus.
While conceding Chairman Issa’s point that the role of the underwriter in IPO pricing raises potential conflicts of interest, after all the underwriter is hired by the issuer and has the primary interest of representing the issuer’s interest, Chairman Schapiro emphasized that SEC and FINRA regulations address these conflicts. For example, SEC Regulation M proscribes activities that could result in manipulation of the offering price by those in a position to influence IPO prices. Regulation M prohibits activities that could artificially influence the market for the security, such as creating the misleading appearance of active trading in that market. In the IPO context, this prohibition is in terms of efforts to induce aftermarket bids while the distribution is occurring.
In addition, FINRA Rule 5131 addresses conflicts of interest in the pricing of IPOs and promotes transparency in IPO pricing so that issuers can make informed decisions regarding the IPO price. Rule 5131 requires that the lead underwriter provide to the issuer’s pricing committee a regular report of the names of institutional investors that have indicated interest, the number of shares interested in, an aggregate report of retail interest, and a post-offering report on the final allocation of shares.
A number of Chairman Issa’s concerns were centered around SEC Rule 175, which provides a safe harbor to issuers for forward-looking information in the prospectus. Chairman Schapiro noted that Rule 175 itself does not impose liability, but rather creates a limited safe harbor from liability under Sections 11, 12(a)(2) and 17(a) of the 1933 Act and Rule 10b-5. Issuers can assert Rule 175 as a defense. The SEC Chair also noted that the heightened pleading requirements of the Private Securities Litigation Reform Act make it less likely that a plaintiff could even bring a claim that would otherwise be defeated by a Rule 175 defense.
Chairman Issa questioned if Rule 175 applies to research reports. For Rule 175 to apply to a research report, said Chairman Schapiro, the report or other statement by a research analyst would have to be considered a statement made by on or behalf of the issuer or by an outside reviewer retained by the issuer. Moreover, the SEC Chair said that the JOBS Act did not extend the Rule 175 safe harbor to research reports. Thus, research reports published on emerging growth companies would not have the benefit of the Rule 175 safe harbor.
Chairman Schapiro also reminded that Rule 175 only comes into play when a company asserts it as a defense. At that point, the burden shifts to the plaintiff to prove that the statements made by the company were not reasonable or made in good faith. Only if that burden is overcome can the Rule 175 defense be negated.
In his letter to Chairman Schapiro, Chairman Issa emphasized that he wanted to begin a dialogue with the SEC to fundamentally transform the regulation of the IPO process. He noted that Congress must revisit the Securities Act, which has given investment banks almost 60 years to enjoy what is essentially flawed legislation fraught with conflicts of interest and incentives to misprice shares. More broadly, given the fierce global competition for capital, he noted, the continued protection, over-regulation and coddling of US financial firms will lead to a weakening of US financial markets. The Committee on Oversight and Government Reform is the principal oversight committee of the House with broad authority to investigate any matter at any time under House Rule X.