FROM: SECURITIES AND EXCHANGE COMMISSION
Limiting — But Not Eliminating — Bad Actors from Certain Offerings
by
Commissioner Luis A. Aguilar
U.S. Securities and Exchange Commission
Open Meeting
Washington, D.C.
July 10, 2013
Today, after too lengthy a delay, the Commission implements the Dodd-Frank mandate to disqualify felons and certain other bad actors from participating in unregistered offerings under Rule 506 of Regulation D.1 Limiting felons and bad actors from participating in Rule 506 offerings is simply the right thing to do, and I support the amendments to Rule 506.
However, the Bad Actor Rule before us today is by no means perfect. The most glaring weakness is that the Bad Actor Rule will only apply to those that are disqualified in the future. In other words, a Bad Actor will only be disqualified if the event that triggers disqualification occurs after the effective date of the rule. Given that the effective date is in the future — that is, 60 days after publication in the Federal Register — what does this mean? It means that everyone who triggers the bad actor definition prior to sometime in September 20132 is free to participate in Rule 506 offerings on a going forward basis.
I do not believe that Congress intended to limit bad actor disqualification to such a great extent. Moreover, it is particularly disappointing that the Commission allowed this rule to languish for more than two years, while all too many “bad actors” received court orders or other sanctions that could have — but, now, will not — disqualify them from taking advantage of Rule 506 for years to come.
In addition, the adopting release makes a number of changes to the proposal that will limit the reach of the Bad Actor Rule. For example, the proposal applied the disqualification triggers to any officer of the issuer or any officer of a person paid to solicit investors; in contrast, the final rule covers only executive officers of such entities and officers who participate in the offering. Similarly, the proposal applied the triggers to any beneficial owner of 10% or more of any class of the issuer’s securities; in contrast, the final rule covers only beneficial owners of securities representing 20% or more of the issuer’s total voting power. I also believe that the look-back period for court injunctions, Commission cease-and-desist orders, and other disqualification orders should have been ten years, rather than five.
However, notwithstanding the significant narrowing of the disqualification, it is important to take steps to limit the potential abuse of Rule 506. That is particularly true as a result of the Commission’s concurrent adoption of a deficient regime allowing general solicitation in Rule 506 offerings.3 Rule 506 is the most widely used exemption for offerings under Regulation D. Companies and investment funds raise almost as much money each year using Rule 506 as they do in registered public offerings. But, as is well known, investors in Rule 506 offerings have substantially fewer protections than investors in public offerings. Accordingly, it makes sense to limit the ability of individuals and entities with a record of fraud or dishonesty, or who have disregarded regulatory requirements, to take advantage of the Rule 506 exemption.
As adopted, the Bad Actor Rule will help protect investors in a number of ways:
First, the rule requires companies and investment managers to exercise due diligence in Rule 506 offerings to ensure that executive officers and other key offering participants are not disqualified under the rule. I expect for issuers utilizing Rule 506 to develop effective vetting procedures to keep the bad apples from harming investors.
Second, the Bad Actor Rule provides the Commission with an additional enforcement tool to protect investors from fraudsters and other recidivists who seek to use Rule 506. Disqualifying bad actors from using Rule 506 should also strengthen the hand of state securities regulators, since offerings that comply with Rule 506 are exempt from the registration and qualification requirements of state securities laws.4
My support for the Bad Actor Rule is tempered by my belief that it should be stronger. Nonetheless, I appreciate the efforts of the staff on this rule.
1 Dodd-Frank Wall Street Reform and Consumer Protection Act, §926. Pub. L. No. 111-203, § 926, 124 Stat. 1376, 1851 (July 21, 2010) (codified at 15 U.S.C. 77d note).
2 The rule is effective 60 days after publication in the Federal Register. Disqualification of Felons and Other “Bad Actors” from Rule 506 Offerings, Release No. 33-[XXXX] (July 10, 2013).
3 Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings, Release No. 33-[XXXX] (July 10, 2013). See, Luis A. Aguilar, “Facilitating General Solicitation at the Expense of Investors,” Statement at SEC Open Meeting (July 10, 2013).
4 See, Securities Act of 1933, §18.
Showing posts with label COMMISSIONER AGUILAR. Show all posts
Showing posts with label COMMISSIONER AGUILAR. Show all posts
Thursday, July 11, 2013
Wednesday, May 15, 2013
SEC COMMISSIONER AGUILAR'S COMMENCEMENT ADDRESS AT GEORGIA SOUTHERN UNIVERSITY
FROM: U.S. SECURITIES AND EXCHANGE COMMISSION
Georgia Southern University Commencement Address: Preparing for Challenges and Opportunities
by
Commissioner Luis A. Aguilar
U.S. Securities and Exchange Commission
Georgia Southern University
Statesboro, GA
May 11, 2013
Good morning. Thank you for that kind introduction. Before I begin, I want to recognize President Keel, and the faculty, parents, families, and friends who are here today. Most importantly, I want to congratulate the Georgia Southern University graduating class of 2013. It is a great honor to be your commencement speaker.
I am sure many of you are looking forward to your well-earned celebrations after today’s commencement exercises, so I will heed the advice that President Franklin D. Roosevelt gave to speechmakers: "Be sincere, be brief and be seated."
Perhaps the most challenging part of delivering a commencement speech is the realization that whatever one says will soon be forgotten. Frankly, my memory of the commencement speech at my own graduation is a bit hazy. So today I will ask you to remember just two things: First, the challenges you will face in life – and there will be many – are just new opportunities to learn and further your education. And second, it is always better to do the right thing, even if that may seem the harder choice.
Commencement is a good time for looking back, as well as for looking forward. When I graduated from Georgia Southern during the last century – well, 1976 – our school was called Georgia Southern College. The school only had about 6,000 students, mostly from the Southeast, and there was no football team. Today, Georgia Southern is a major university with more than 20,000 students coming from almost all 50 states and over 80 countries. And the Eagles will soon be dominating the Sun-Belt Conference.
Also, in 1976, the fastest computing machine in the world – called the Cray-1 – was built in Chippewa Falls, Wisconsin, and delivered to the Los Alamos National Laboratory. That machine cost about $9 million dollars, weighed about 5-1/2 tons, and needed a liquid Freon cooling system to operate without melting down. Meanwhile, in Albuquerque, New Mexico, Bill Gates and Paul Allen were writing software for an early microcomputer, while Steve Jobs and Steve Wozniak were assembling circuit boards for something called the Apple I in a garage in Cupertino, California. Today, if you own a four-ounce smartphone, you can have more computing power in your hand than the 5-1/2 ton Cray-1 supercomputer in 1976.
I tell you this because, in 1976, very few of us had a clue that the personal computing revolution was just around the corner. We didn’t know that the Internet would change the way we live, work, shop, communicate, and share information. Nor did we know how attached we would be to cell phones.
By the same token, none of us knows today how the world is going to change over the next 37 years. None of us knows what changes are just around the corner – what invention or innovation will transform the way we live and work.
We only know there will be changes, and you need to be ready for them. Because change creates challenges, and challenges create opportunities.
For me, when I graduated in 1976, I had no idea what challenges were ahead. When I drove away from Statesboro, everything I owned fit inside a two-door compact car. In the passing years, I sold my car, and used up, wore out, or threw out everything that had been in that car. The only thing that remained was the education I received at Georgia Southern and the confidence to know that I had been prepared to go out into the world and learn new things. I am sure you already know that graduation is not the end of your education and learning. Graduation is just proof that you know how to learn successfully.
My years at Georgia Southern taught me the importance of hard work, determination, and, of course, having a good support network. Graduates, always remember to thank your proud parents, family members, teachers, and mentors, who offered you their support and encouragement. And, on that note, I want to acknowledge that tomorrow is Mother’s Day and I ask you to join me in thanking all the Moms for all they do to make our lives better. Of course, we need to acknowledge the Fathers as well.
In the years to come, when you have achieved great success in your career and in your life, it will become even clearer than it is now that a large part of your achievement was made possible by the love and support of your parents, and the support of many other generous individuals who were there for you when you needed them.
Turn Challenges Into Opportunities
My first point this morning is to encourage you to turn challenges into opportunities. Life is certain to bring you challenges. You cannot avoid them, but you should not fear them. Helen Keller once said, "Life is either a daring adventure or nothing." She meant that we should not be afraid to take chances. Embrace these challenges and turn them into opportunities. Remember, you live in a country where anything and everything is possible. I truly believe in the American Dream. I know it is real, because I’ve lived it.
Let me tell you a little bit about myself. I was born in Cuba. When I was six years old, my parents sent my nine-year-old brother and me to the United States because they feared for our safety. Fidel Castro had seized control of the Cuban government and things were going from bad to worse under the Communist regime. Thousands of Cuban children arrived in the United States as refugees, without their parents or means of financial support. I arrived in America as a six-year-old child with little more than the clothes I was wearing, and did not speak a word of English. Fortunately, the generosity showed to us by others and our determination to survive this challenge saw us through those early years.
I am grateful to this country for the opportunities it has provided me. I was able to pay my way through college and law school by taking on jobs ranging from being a "stock boy" in a yarn store to loading baggage and cargo into airplanes at the Miami International Airport. These experiences helped make me who I am today, and inspired me to be a public servant.
It is a long way from the hot tarmac of the airport in Miami to the halls of our Nation’s capital, but I carry that experience with me. I know how hard Americans work to pay their bills, keep a roof over their heads, and – if they are lucky – set aside a little bit every month to save for retirement and their children’s education.
I have now been a lawyer for over 30 years. Law has been my profession, but it is not my only passion. Throughout my career I have tried to stay involved in many community organizations and I encourage you do to the same. Giving time and effort to your communities can bring a great deal of personal satisfaction. In my case, I have been particularly active with organizations that worked to improve the lives of minorities and the underserved. To this day, I am very supportive of efforts to create a more diverse workforce – because I believe that promoting diversity makes us all stronger. When government agencies and companies increase diversity in their workplace, they attract better-qualified job candidates, they promote a more innovative workforce, and they make America more competitive in a globalized world.
On that point, let me acknowledge the growing diversity at Georgia Southern. When I was a college student here, my African-American roommate and I were part of only a handful of minority students on campus. I am delighted to see that the school’s minority population has increased to almost one-third of the school’s student population.
My experiences as a newly arrived six-year-old refugee, and working my way through college and law school, have underscored for me that America truly is a land of opportunity. America is a land where anything is possible – and challenges and obstacles do not need to be the end of a dream but rather opportunities to come out stronger.
Georgia Southern has prepared you for the challenges to come. When you face an obstacle, treat it as an opportunity and overcome it with determination and hard work. Oftentimes, the rewards in life are attained by those who want them the most.
Do The Right Thing
My second point is to urge you to do the right thing. The importance of doing the right thing has become even clearer to me during my terms as a Commissioner at the U.S. Securities and Exchange Commission ("SEC"). The SEC is an independent federal agency that oversees our Nation’s capital markets – the world’s largest and most complex market for stocks, bonds, and other types of investment securities. I expect that most of the parents, faculty, and many students, in one way or another, benefit from the work of the SEC. That’s because many of you invest directly in publicly traded companies or put your hard-earned money into pension funds, mutual funds, college savings plans, and 401(k)s.
Although the SEC does many things, it’s mainly known for its role as a law enforcement agency. SEC enforcement actions against people who engage in Ponzi schemes, insider trading, and other kinds of securities fraud and misconduct are essential to strong capital markets. This is important because if investors are confident that the securities market is fair, honest, and transparent, they will invest their money and provide the capital necessary to fund the growth of companies. As businesses thrive, jobs are created, and our economy grows.
There are many reasons for bringing an enforcement action, but the most common denominator is simple: someone chose not to do the right thing. I am not so naïve as to think that simply telling people to do the right thing will get rid of every crook or fraudster, or avert the next global financial crisis. However, many of the cases that come before the SEC arise because otherwise decent people chose to turn off their ethical compass. Often, there were people who could have done the right thing to stop the fraud, but looked the other way or just didn’t want to get involved. Perhaps some future harm can be avoided, if all of us work to help maintain a culture of doing the right thing, even when it’s not the easy thing to do.
At some point in your life, when you have a tough choice between doing what is convenient and doing what is right, I hope you will remember to do what is right. As Dr. Martin Luther King, Jr., once said, "There comes a time when one must take the position that is neither safe nor politic nor popular, but he must do it because conscience tells him it is right."
Conclusion
In closing, as you leave Georgia Southern today, I am positive that you have the tools to meet challenges head-on – even if you don’t know today what those challenges will be – and I am confident that your moral compass will let you know the right thing to do when needed.
I know that the Georgia Southern Class of 2013 will do great things. I join with your parents, family, teachers, and friends in congratulating you. We all wish you the best of luck in all your future endeavors.
Georgia Southern University Commencement Address: Preparing for Challenges and Opportunities
by
Commissioner Luis A. Aguilar
U.S. Securities and Exchange Commission
Georgia Southern University
Statesboro, GA
May 11, 2013
Good morning. Thank you for that kind introduction. Before I begin, I want to recognize President Keel, and the faculty, parents, families, and friends who are here today. Most importantly, I want to congratulate the Georgia Southern University graduating class of 2013. It is a great honor to be your commencement speaker.
I am sure many of you are looking forward to your well-earned celebrations after today’s commencement exercises, so I will heed the advice that President Franklin D. Roosevelt gave to speechmakers: "Be sincere, be brief and be seated."
Perhaps the most challenging part of delivering a commencement speech is the realization that whatever one says will soon be forgotten. Frankly, my memory of the commencement speech at my own graduation is a bit hazy. So today I will ask you to remember just two things: First, the challenges you will face in life – and there will be many – are just new opportunities to learn and further your education. And second, it is always better to do the right thing, even if that may seem the harder choice.
Commencement is a good time for looking back, as well as for looking forward. When I graduated from Georgia Southern during the last century – well, 1976 – our school was called Georgia Southern College. The school only had about 6,000 students, mostly from the Southeast, and there was no football team. Today, Georgia Southern is a major university with more than 20,000 students coming from almost all 50 states and over 80 countries. And the Eagles will soon be dominating the Sun-Belt Conference.
Also, in 1976, the fastest computing machine in the world – called the Cray-1 – was built in Chippewa Falls, Wisconsin, and delivered to the Los Alamos National Laboratory. That machine cost about $9 million dollars, weighed about 5-1/2 tons, and needed a liquid Freon cooling system to operate without melting down. Meanwhile, in Albuquerque, New Mexico, Bill Gates and Paul Allen were writing software for an early microcomputer, while Steve Jobs and Steve Wozniak were assembling circuit boards for something called the Apple I in a garage in Cupertino, California. Today, if you own a four-ounce smartphone, you can have more computing power in your hand than the 5-1/2 ton Cray-1 supercomputer in 1976.
I tell you this because, in 1976, very few of us had a clue that the personal computing revolution was just around the corner. We didn’t know that the Internet would change the way we live, work, shop, communicate, and share information. Nor did we know how attached we would be to cell phones.
By the same token, none of us knows today how the world is going to change over the next 37 years. None of us knows what changes are just around the corner – what invention or innovation will transform the way we live and work.
We only know there will be changes, and you need to be ready for them. Because change creates challenges, and challenges create opportunities.
For me, when I graduated in 1976, I had no idea what challenges were ahead. When I drove away from Statesboro, everything I owned fit inside a two-door compact car. In the passing years, I sold my car, and used up, wore out, or threw out everything that had been in that car. The only thing that remained was the education I received at Georgia Southern and the confidence to know that I had been prepared to go out into the world and learn new things. I am sure you already know that graduation is not the end of your education and learning. Graduation is just proof that you know how to learn successfully.
My years at Georgia Southern taught me the importance of hard work, determination, and, of course, having a good support network. Graduates, always remember to thank your proud parents, family members, teachers, and mentors, who offered you their support and encouragement. And, on that note, I want to acknowledge that tomorrow is Mother’s Day and I ask you to join me in thanking all the Moms for all they do to make our lives better. Of course, we need to acknowledge the Fathers as well.
In the years to come, when you have achieved great success in your career and in your life, it will become even clearer than it is now that a large part of your achievement was made possible by the love and support of your parents, and the support of many other generous individuals who were there for you when you needed them.
Turn Challenges Into Opportunities
My first point this morning is to encourage you to turn challenges into opportunities. Life is certain to bring you challenges. You cannot avoid them, but you should not fear them. Helen Keller once said, "Life is either a daring adventure or nothing." She meant that we should not be afraid to take chances. Embrace these challenges and turn them into opportunities. Remember, you live in a country where anything and everything is possible. I truly believe in the American Dream. I know it is real, because I’ve lived it.
Let me tell you a little bit about myself. I was born in Cuba. When I was six years old, my parents sent my nine-year-old brother and me to the United States because they feared for our safety. Fidel Castro had seized control of the Cuban government and things were going from bad to worse under the Communist regime. Thousands of Cuban children arrived in the United States as refugees, without their parents or means of financial support. I arrived in America as a six-year-old child with little more than the clothes I was wearing, and did not speak a word of English. Fortunately, the generosity showed to us by others and our determination to survive this challenge saw us through those early years.
I am grateful to this country for the opportunities it has provided me. I was able to pay my way through college and law school by taking on jobs ranging from being a "stock boy" in a yarn store to loading baggage and cargo into airplanes at the Miami International Airport. These experiences helped make me who I am today, and inspired me to be a public servant.
It is a long way from the hot tarmac of the airport in Miami to the halls of our Nation’s capital, but I carry that experience with me. I know how hard Americans work to pay their bills, keep a roof over their heads, and – if they are lucky – set aside a little bit every month to save for retirement and their children’s education.
I have now been a lawyer for over 30 years. Law has been my profession, but it is not my only passion. Throughout my career I have tried to stay involved in many community organizations and I encourage you do to the same. Giving time and effort to your communities can bring a great deal of personal satisfaction. In my case, I have been particularly active with organizations that worked to improve the lives of minorities and the underserved. To this day, I am very supportive of efforts to create a more diverse workforce – because I believe that promoting diversity makes us all stronger. When government agencies and companies increase diversity in their workplace, they attract better-qualified job candidates, they promote a more innovative workforce, and they make America more competitive in a globalized world.
On that point, let me acknowledge the growing diversity at Georgia Southern. When I was a college student here, my African-American roommate and I were part of only a handful of minority students on campus. I am delighted to see that the school’s minority population has increased to almost one-third of the school’s student population.
My experiences as a newly arrived six-year-old refugee, and working my way through college and law school, have underscored for me that America truly is a land of opportunity. America is a land where anything is possible – and challenges and obstacles do not need to be the end of a dream but rather opportunities to come out stronger.
Georgia Southern has prepared you for the challenges to come. When you face an obstacle, treat it as an opportunity and overcome it with determination and hard work. Oftentimes, the rewards in life are attained by those who want them the most.
Do The Right Thing
My second point is to urge you to do the right thing. The importance of doing the right thing has become even clearer to me during my terms as a Commissioner at the U.S. Securities and Exchange Commission ("SEC"). The SEC is an independent federal agency that oversees our Nation’s capital markets – the world’s largest and most complex market for stocks, bonds, and other types of investment securities. I expect that most of the parents, faculty, and many students, in one way or another, benefit from the work of the SEC. That’s because many of you invest directly in publicly traded companies or put your hard-earned money into pension funds, mutual funds, college savings plans, and 401(k)s.
Although the SEC does many things, it’s mainly known for its role as a law enforcement agency. SEC enforcement actions against people who engage in Ponzi schemes, insider trading, and other kinds of securities fraud and misconduct are essential to strong capital markets. This is important because if investors are confident that the securities market is fair, honest, and transparent, they will invest their money and provide the capital necessary to fund the growth of companies. As businesses thrive, jobs are created, and our economy grows.
There are many reasons for bringing an enforcement action, but the most common denominator is simple: someone chose not to do the right thing. I am not so naïve as to think that simply telling people to do the right thing will get rid of every crook or fraudster, or avert the next global financial crisis. However, many of the cases that come before the SEC arise because otherwise decent people chose to turn off their ethical compass. Often, there were people who could have done the right thing to stop the fraud, but looked the other way or just didn’t want to get involved. Perhaps some future harm can be avoided, if all of us work to help maintain a culture of doing the right thing, even when it’s not the easy thing to do.
At some point in your life, when you have a tough choice between doing what is convenient and doing what is right, I hope you will remember to do what is right. As Dr. Martin Luther King, Jr., once said, "There comes a time when one must take the position that is neither safe nor politic nor popular, but he must do it because conscience tells him it is right."
Conclusion
In closing, as you leave Georgia Southern today, I am positive that you have the tools to meet challenges head-on – even if you don’t know today what those challenges will be – and I am confident that your moral compass will let you know the right thing to do when needed.
I know that the Georgia Southern Class of 2013 will do great things. I join with your parents, family, teachers, and friends in congratulating you. We all wish you the best of luck in all your future endeavors.
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