In December, the U.S. Securities and Exchange Commission (SEC) announced charges against two privately held companies for failing to file a Form D notice, which is generally utilized for exempt securities offerings. Here, the SEC's enforcement sends a strong message: compliance with regulatory requirements is not optional and failure to comply can have significant consequences.
Understanding Form D and Regulation D Compliance
Securities offerings in the United States must either be registered under the Securities Act or qualify for a registration exemption. One of the most popular exemptions is Regulation D, which provides a safe harbor from registration requirements. To qualify for exemption under Regulation D, the issuer of unregistered securities must file a notice of sale via a Form D filing no later than 15 calendar days after the first sale in a private offering. This filing provides the SEC the essential information about the issuer and the offering to allow for the monitoring of the private securities offerings.
While previously considered by many to be a technicality, these recent enforcement actions highlight that failure to comply with Rule 503 of Regulation D now carries real risk.
A Shift in SEC Enforcement
For years, many issuers believed they could avoid SEC enforcement actions even though they did not comply with the filing of Form D and/or deviating from other Regulation D requirements. Previously issued guidance from the SEC's Compliance and Disclosure Interpretations provided that while a Form D filing is a requirement of Rule 503, it is not a condition to the availability of an exemption pursuant to Rule 504 or 506 of Regulation D. This discrepancy gave rise to an informal understanding that the SEC would not initiate an enforcement action solely for the failure to file a Form D. As a result, many issuers conducted private offerings without making the Form D filing or with some other purported "insignificant deviations" from the Regulation D requirements, as the issuers considered the possibility of a SEC enforcement action to be low to nonexistent. However, the recent enforcement actions indicate a shift in the SEC's approach. Whether this approach continues with the new administration remains to be seen.
The Cases Against Pipe Technologies and Underdog Sports Holdings
The SEC's enforcement actions against Pipe Technologies Inc. and Underdog Sports Holdings, Inc. serve as cautionary tales for issuers:
- Pipe Technologies Inc.: This financial technology company engaged in multiple unregistered securities offerings, solicited at least 140 prospective investors, and raised at least $250 million from over 100 investors—all without filing any Form D.
- Underdog Sports Holdings, Inc.: This online fantasy sports platform similarly conducted unregistered securities offering and reached out to several hundred investors, raising tens of millions of dollars—again, without filing any Form D.
Both companies not only failed to file Form D, but they also engaged in general solicitation, further limiting their available exemptions under Regulation D. The SEC imposed sanctions, including cease-and-desist orders and civil penalties, all of which underscore the serious consequences of non-compliance.
The SEC justified its actions against these two issuers on the basis that timely Form D filings help maintain transparency in the private capital markets by providing the SEC with important information about private securities offerings and ensure investor protection.
What This Means for Issuers
These actions by the SEC may also encourage state regulators to increase scrutiny and enforcement of their own blue sky laws, further raising the stakes for non-compliant issuers. If you are considering raising capital through private securities offerings, it is important that you consult with a securities attorney and take the necessary precautions:
- Ensure full compliance with all Regulation D requirements, including timely Form D filings.
- Avoid general solicitation unless you are certain your offering qualifies under Rule 506(c) or Rule 504.
- Seek legal guidance from experienced securities counsel to navigate complex regulatory landscapes.
Don't Risk Costly Consequences
Failing to file Form D might seem like a minor oversight, but as these SEC enforcement actions demonstrate, it can lead to serious repercussions. Reach out to us today to discover how our Business Law team can help you take proactive steps today to ensure your private securities offering remains fully compliant and protect your company's future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
