Securities underwriting activities

Regulatory action in the credit crunch[ edit ] The SEC announced on September 17,strict new rules to prohibit all forms of " naked short selling " as a measure to reduce volatility in turbulent markets. The Commission has also investigated trading irregularities and abusive short-selling practices. Hedge fund managers, broker-dealers, and institutional investors were also asked to disclose under oath certain information pertaining to their positions in credit default swaps. Regulatory failures[ edit ] The SEC has been criticized "for being too 'tentative and fearful' in confronting wrongdoing on Wall Street ", and for doing "an especially poor job of holding executives accountable".

Securities underwriting activities

Previously, the rule applied only to dealers and their associated persons.

Administrative Rules of the Oklahoma Department of Securities

Rule G became applicable to all municipal advisors, including solicitor municipal advisors, and their associated persons, on December 22, Rule G contains an anti-fraud prohibition similar to the standard set forth in Rule 10b-5 adopted by the SEC under securities underwriting activities Exchange Act.

Thus, all municipal advisors must refrain from engaging in certain conduct and must not misrepresent or omit the facts, risks, or other material information about municipal advisory activities undertaken. However, Rule G does not merely prohibit deceptive conduct on the part of a municipal advisor.

The rule also establishes a general duty of a municipal advisor to deal fairly with all persons, even in the absence of fraud. Rule G imposes a duty of fair dealing on solicitor municipal advisors when they are soliciting business from municipal entities and obligated persons on behalf of third parties.

Thus, in addition to owing the specific obligations discussed below to issuers of municipal securities, solicitor municipal advisors also owe such obligations to, for example, state and local government sponsored public pension plans and local government investment pools. Additionally, if a solicitor municipal advisor is engaged by its client to present information about a product or service offered by the third-party client to the municipal entity or obligated person, the solicitor municipal advisor must disclose all material risks and characteristics of the product or service.

Under the Exchange Act, municipal advisors and their associated persons are deemed to owe a fiduciary duty to their municipal entity clients. Nonetheless, as noted above, solicitor municipal advisors are subject to the fair dealing standards under Rule G including with respect to their clients and the entities that they solicit.

S ], at n. The MSRB has previously observed that Rule G requires dealers to deal fairly with issuers in connection with the underwriting of their municipal securities. Accordingly, the MSRB is providing additional interpretive guidance that addresses how Rule G applies to securities underwriting activities acting in the capacity of underwriters in the municipal securities transactions described below.

Except where a competitive underwriting is specifically mentioned, this notice applies to negotiated underwritings only. Furthermore, it does not apply to selling group members. The examples discussed in this notice are illustrative only and are not meant to encompass all obligations of dealers to municipal entities under Rule G Furthermore, when municipal entities are customers [4] of dealers they are subject to the same protections under MSRB rules, including Rule G, that apply to other customers.

An underwriter also has a duty to comply with other MSRB rules as well as other federal and state securities laws. Basic Fair Dealing Principle As noted above, Rule G precludes a dealer, in the conduct of its municipal securities activities, from engaging in any deceptive, dishonest, or unfair practice with any person, including an issuer of municipal securities.

The rule contains an anti-fraud prohibition. Thus, an underwriter must not misrepresent or omit the facts, risks, potential benefits, or other material information about municipal securities activities undertaken with a municipal issuer.

However, Rule G does not merely prohibit deceptive conduct on the part of the dealer. It also establishes a general duty of a dealer to deal fairly with all persons including, but not limited to, issuers of municipal securitieseven in the absence of fraud. The underwriter must disclose to the issuer that: The underwriter also must not recommend that the issuer not retain a municipal advisor.

The underwriter must disclose to the issuer whether its underwriting compensation will be contingent on the closing of a transaction. It must also disclose that compensation that is contingent on the closing of a transaction or the size of a transaction presents a conflict of interest, because it may cause the underwriter to recommend a transaction that it is unnecessary or to recommend that the size of the transaction be larger than is necessary.

The underwriter must also disclose other potential or actual material conflicts of interest, including, but not limited to, the following: Other conflicts disclosures must be made by the particular underwriters subject to such conflicts. Timing and Manner of Disclosures.

All of the foregoing disclosures must be made in writing to an official of the issuer that the underwriter reasonably believes has the authority to bind the issuer by contract with the underwriter and that, to the knowledge of the underwriter, is not a party to a disclosed conflict.

Disclosures must be made in a manner designed to make clear to such official the subject matter of such disclosures and their implications for the issuer.

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Other conflicts disclosures must be made at the same time, except with regard to conflicts discovered or arising after the underwriter has been engaged. For example, a conflict may not be present until an underwriter has recommended a particular financing.

The underwriter must attempt to receive written acknowledgement other than by automatic e-mail receipt by the official of the issuer of receipt of the foregoing disclosures. If the official of the issuer agrees to proceed with the underwriting engagement after receipt of the disclosures but will not provide written acknowledgement of receipt, the underwriter may proceed with the engagement after documenting with specificity why it was unable to obtain such written acknowledgement.

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Representations to Issuers All representations made by underwriters to issuers of municipal securities in connection with municipal securities underwritings, whether written or oral, must be truthful and accurate and must not misrepresent or omit material facts.

Underwriters must have a reasonable basis for the representations and other material information contained in documents they prepare and must refrain from including representations or other information they know or should know is inaccurate or misleading.

For example, in connection with a certificate signed by the underwriter that will be relied upon by the issuer or other relevant parties to an underwriting e. Matters not within the personal knowledge of those preparing the response e. An underwriter must not represent that it has the requisite knowledge or expertise with respect to a particular financing if the personnel that it intends to work on the financing do not have the requisite knowledge or expertise.Bodily Injury Exclusion Inapplicable to Wrongful Death Suit.

Prior and Pending Litigation Exclusion Does Not Apply Where Insurer Cannot Establish Facts Alleged in .

securities underwriting activities

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(ii) FINRA has provided an opinion that it has no objections to the proposed underwriting and other terms and arrangements or an opinion that the proposed underwriting and other terms and arrangements are unfair and unreasonable.

The term “member” when used with respect to a national securities exchange means (i) any natural person permitted to effect transactions on the floor of the exchange without the services of another person acting as broker, (ii) any registered broker or dealer with which such a natural person is associated, (iii) any registered broker or dealer permitted to designate as a representative.

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