July 4, 2022

Volume XII, Number 185

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The Applicability of Anti-Fraud Rules to Certain Statements and Information made by Obligated Persons of Municipal Securities – A Legal Bulletin ‘Reminder’ from the Office of Municipal Securities

On February 7, 2020, the Securities and Exchange Commission’s (the “SEC”) Office of Municipal Securities released its Legal Bulletin No. 21 (the “Bulletin”) regarding the applicability of the anti-fraud provisions of the federal securities laws to certain statements made and information disseminated in the secondary market by municipal issuers and others obligated to provide for the repayment of municipal securities (“Obligated Persons”).

The anti-fraud provisions of the federal securities laws generally focus on the obligation to ensure the completeness and accuracy of the information provided to investors.

Obligated Persons are typically mindful of the applicability of these provisions when preparing primary offering materials. However, this Bulletin reiterates the SEC’s position that anytime an Obligated Person releases information to the public that is reasonably expected to reach investors, the anti-fraud rules apply. 

Market participants were hopeful that the Bulletin would provide more specific guidance on when and how the anti-fraud provisions apply to these communications, in light of the SEC’s expressed priority to encourage more current disclosure for secondary market investors.  However, the Bulletin largely reiterates the SEC’s existing guidance without greater clarity.

The Bulletin links to certain prior guidance from the SEC with respect to:

  • information posted on websites;

  • the use of hyperlinks; 

  • information included in public reports delivered to government agencies or otherwise made part of the public record; and 

  • statements made by officers/officials of an Obligated Person, including speeches, press releases, interviews, and social media; 

indicating that, depending upon the facts and circumstances, such information and statements may be subject to the anti-fraud provisions, regardless of the extent to which the Obligated Person has fulfilled its contractual continuing disclosure obligations.

The existing standard “reasonably likely to reach investors” looks much different in the context of today’s technologically advanced world than it did when the SEC originally published these reports, but  the Bulletin does little to provide more guidance to Obligated Persons on how to address potential anti-fraud liability when communicating information publicly.  

Certain commentators have expressed concerns that the SEC’s broad brush approach to describing the universe of communications potentially subject to liability, without providing additional guidance, could have a chilling effect on the dissemination of timely and current information. 

The Bulletin emphasizes the importance of adopting policies and procedures to address compliance with the anti-fraud provisions when making statements and providing information that is reasonably expected to reach investors. 

The SEC staff encourages Obligated Persons to include the following matters (among other things) in these policies and procedures: 

(i) designating an individual responsible for compliance with such policies and procedures; 
(ii) establishing a periodic training schedule for Obligated Person officials and staff responsible for developing, reviewing and disseminating disclosures; 
(iii) identifying documents and reports that customarily contain current information about the Obligated Person’s financial condition and operations; 
(iv) establishing a process by which the Obligated Person makes such documents and reports available to investors; and 
(v) identifying the place or places where the Obligated Person makes such documents and reports regularly available to the public, such as EMMA or an investor-relations website.

The full text of the Bulletin is available here

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 48
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About this Author

Janet E. Zeigler, Polsinelli, health care, long-term care lawyer,  educational facilities attorney
Shareholder

Having acted as counsel on more than 200 issues totaling over $25 billion, Janet Zeigler understands the intricacies associated with nonprofit finance. Most of her 22 years of experience have been focused on tax-exempt financing transactions for 501(c)(3) organizations, including health care, long-term care, cultural, and educational facilities. Janet also counsels clients in connection with the negotiation of bank credit agreements, and provides advice for post-issuance compliance with federal securities laws and federal tax laws relating to tax exempt bonds, including...

312-873-3679
Jessica Jacob Zaiger, Polsinelli, taxable financing transactions lawyer, compliance matters attorney
Shareholder

Jessica Zaiger is committed to diligently representing health care and other nonprofit organizations and assisting them with their financing needs. From complex tax-exempt and taxable financing transactions to routine compliance matters, Jessica is poised to provide guidance and advice. She joined Polsinelli because of its commitment to participants in the health care and nonprofit sectors, as well as its strong relationship with health care and nonprofit organizations across the nation. Jessica is dedicated to contributing to these relationships by providing valuable...

816-572-4419
Timothy J. Reimers, Polsinelli, acquisitions Lawyer, large real estate portfolios attorney
Principal

Whether closing an acquisition of large real estate portfolios, financing sophisticated projects or providing legal counsel on day-to-day operations, Tim Reimers strives to provide clients with the highest possible level of legal advice. Clients rely on the focused service and zealous representation Tim brings to project, infrastructure and health care finance. As a team leader in Polsinelli’s finance and real estate practices, he helps clients acquire, develop and finance their operations, real estate and other capital resources. Tim’s experience and reputation is built...

310-203-5316
James M. Broeking Counsel Capital Markets Commercial Lending Health Care Finance Public/Municipal Finance Nonprofit Finance Health Care Services
Counsel

With over 30 years of experience, Jim Broeking has represented borrowers and served as bond counsel and underwriter’s counsel in transactions for not-for-profit organizations located in 25 states. Jim has worked with a variety of health care and senior living providers−ranging from continuing care retirement communities and assisted living and skilled nursing facilities to public hospital districts, critical access hospitals, community hospitals and integrated health care systems−in accessing the capital markets through both tax-exempt and taxable financings, including public debt...

312-873-3638
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