International Municipal Lawyers Association 75th Annual Conference New Orleans, LA
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1 International Municipal Lawyers Association 75th Annual Conference New Orleans, LA A Municipal Lawyer s Primer re: Initial and and Continuing Disclosure Responsibilities of Municipal Securities Issuers under the Federal Securities Laws October 12, 2010 Kathleen C. McKinney Haynsworth Sinkler Boyd, P.A. and John M. McNally Hawkins Delafield & Wood LLP, as representatives of the National Association of Bond Lawyers 2010 International Municipal Lawyers Association. This is an informational and educational report distributed by the International Municipal Lawyers Association during its 75 th Annual Conference, held October 10-13, 2010 in New Orleans, LA. IMLA assumes no responsibility for the policies or positions presented in the report or for the presentation of its contents.
2 The city attorney s role in the issuance of municipal debt is important, but it can have pitfalls for the unwary. The panel members will address (1) the different types of disclosures commonly made to investors by municipal issuers, (2) potential liabilities for misleading disclosure, (3) the elements of a cause of action by either the SEC or a private plaintiff, (4) the responsibilities of elected and appointed officials and staff in reviewing and approving disclosure documents, and (5) your role as counsel to the municipal government in advising your clients and rendering opinions in connection with a bond financing. The panel will include the current President and President-Elect of the National Association of Bond Lawyers ( NABL ), an association comprised of approximately 2,500 lawyers who practice in municipal finance. The presentation will draw upon the recently published DISCLOSURE ROLES OF COUNSEL IN STATE AND LOCAL GOVERNMENT SECURITIES OFFERINGS, Third Edition, a joint publication of the American Bar Association and NABL. i
3 This paper provides a general overview of the application of the federal securities laws to disclosures made by municipal securities issuers, both with respect to initial disclosure in connection with a new bond financing and ongoing disclosure during the life of the bonds. Disclosures in connection with a new bond financing are sometimes referred to as primary market disclosure, and the ongoing disclosures are referred to as continuing disclosure or secondary market disclosure. In particular, this paper examines (i) the various contexts in which disclosure occurs, (ii) the standards that apply in determining whether such disclosure satisfies the federal securities laws, (iii) the types of actions that the SEC and private plaintiffs can bring for alleged misleading disclosure, and (iv) the responsibilities of municipal lawyers in connection with such financings. All securities, whether stocks, bonds, notes, commercial paper, etc., must be registered with the Securities and Exchange Commission (the SEC ) unless there is an applicable exemption. Such registration is required pursuant to Section 5 of the Securities Act of 1933 (the 1933 Act ). 1 However, there is an exemption from registration for municipal securities generally. Section 3(a)(2) of the 1933 Act provides an exemption from registration for any security issued or guaranteed by a State, or by a political subdivision or public instrumentality of a State. 2 Because of such exemption, the SEC s rules and regulations that prescribe particular forms for disclosure and periodic reports for public companies have no direct application to municipal securities. Nonetheless, the antifraud provisions of the federal securities laws do apply to disclosures that are reasonably expected to reach investors. In addition, the SEC regulates municipal securities brokers and dealers. Disclosure Contexts Disclosures by municipal bond issuers are made in three principal contexts. The first context is primary disclosure, meaning in connection with a new offering of securities. In general, this will mean a Preliminary Official Statement ( POS ) and final Official Statement ( OS ) prepared by an issuer in connection with a new offering of securities to the public. In addition to primary disclosure in POSs and OSs, there are the secondary market disclosures made by an issuer. SEC Rule 15c2-12, promulgated under the Securities Exchange Act of 1934 (the 1934 Act ), 3 applies to underwriters (banking firms that buy as principal a municipal issuer s bonds for resale to investors) and does not apply to issuers. SEC Rule 15c2-12 provides that the underwriters cannot offer an issuer s securities unless they have reasonably 1 15 U.S.C. 77e U.S.C. 77c CFR c2-12. Page 1 of 10
4 determined that the issuer will provide the required secondary market disclosures. This is accomplished by requiring the issuer to enter into a continuing disclosure agreement, which states that an issuer will provide specified annual financial information (including audited financial statements) for the life of the bond issue and make disclosure regarding certain specified events. In addition to the continuing disclosure contractual requirements reflected in such agreements, an issuer may determine to make voluntary filings with the Municipal Securities Rulemaking Board, through its Electronic Municipal Market Access system, or EMMA. It should be noted that, with respect to ongoing disclosures by an issuer, there is no general obligation to disclose all material information. The disclosure requirements only apply when in a primary offering period or if a specified material event set forth in a continuing disclosure agreement has occurred. In addition to OSs and continuing disclosure agreements, releases or statements by an issuer or its officials that are reasonably expected to reach investors and the trading markets is the third context for disclosure. In a 1994 interpretive release, the SEC advised as follows: A municipal issuer... when it releases information to the public that is reasonably expected to reach investors and the trading markets, those disclosures are subject to the antifraud provisions. The fact that they are not published for purposes of informing the securities markets does not alter the mandate that they not violate antifraud proscriptions. 4 For example, investor information on an issuer s website, rating agency presentations, press releases regarding the financial health of the issuer, certain public statements by issuer officials and responses by issuer officials to inquiries from the public, all may be considered to be reasonably expected to reach the investing public. Disclosure Standards Although municipal securities are exempt from registration, the antifraud provisions of the federal securities laws do apply in all three of the contexts described above. Rule 10b-5 (adopted pursuant to Section 10(b) of the 1934 Act) is the general antifraud rule, which provides that it is unlawful for any person... to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading SEC Rel. Nos , (Mar. 9, 1994) CFR b-5. Page 2 of 10
5 In short, there can be no material misstatements or omissions. Material, in the context of omitted information, has been defined by the courts to mean a substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable [investor]. 6 It is not enough that any single investor finds the information material. It must meet the objective standard of being material to the hypothetical reasonable investor. Causes of Action The SEC can bring enforcement actions against various municipal market participants for violations of the federal securities laws. In addition, private plaintiffs can sue if they suffer damages as a result of misleading disclosure. The SEC can bring an administrative action (before an administrative law judge of the SEC), a civil action in federal court, or can refer a case to the Department of Justice for criminal proceedings. In an administrative proceeding, the SEC can seek a cease-and-desist order, and if such order is violated the SEC can go to court seeking a civil penalty. The cease-and-desist order can be based on a finding of negligence or recklessness. Alternatively, the SEC can issue a report pursuant to Section 21(a) of the 1934 Act (a 21(a) Report ) 7 (which was done in connection with Orange County and is discussed in some detail below). For a Rule 10b-5 cause of action for misleading disclosure, the SEC has to demonstrate the following: (i) that there was a materially misleading misstatement or omission, (ii) such misleading misstatement or omission was made or omitted with scienter (fraudulent intent or recklessness), and (iii) such misleading misstatement or omission was made in connection with the purchase or sale of a security. Recklessness has been defined by the 9th Circuit as an extreme departure from the standards of ordinary care and which presents a danger of misleading [investors] that is either known to the defendant or is so obvious that the actor must have been aware of it. 8 A private plaintiff seeking damages under Rule 10b-5 would have to show, in addition to the three elements of any SEC action, damages and reliance on the misleading disclosure. In addition to Rule 10b-5, the SEC (but not a private plaintiff, at least in most Circuits) may bring an action against an issuer under Sections 17(a)(2) or 6 TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976) U.S.C. 78u. 8 Hollinger v. Titan Capital Corp., 914 F.2d 1564 (9 th Cir. 1990)(en banc), cert. denied, 499 U.S. 976 (1991). Page 3 of 10
6 17(a)(3) of the 1933 Act. 9 For purposes of such actions, the SEC must simply show negligence. Specifically, the SEC must show (i) materially misleading misstatements or omissions, (ii) misstatements or omissions were made in the offer or sale of securities, and (iii) the misstatements or omissions were made with negligence. As described above, the SEC can bring specific types of enforcement actions, such as administrative or civil actions or a criminal referral to the Justice Department. In the context of municipal securities, the SEC can bring such enforcement actions against (i) the governmental issuer of the securities, (ii) individual members of the legislative body of the issuer, (iii) government officials and employees, and (iv) third parties, such as underwriters, financial advisors, and bond counsel. To date, no enforcement action has been taken by the SEC against individual members of a legislative body. The SEC did, however, in connection with the 1994 Orange County bankruptcy and related SEC investigations, issue a report that provides guidance regarding the federal securities law responsibilities of members of a legislative body (the Orange County Report ). 10 Orange County (1996) The first major SEC municipal enforcement action arose out of the Orange County financial problems that resulted from their derivative trading. In January of 1996, the SEC brought certain enforcement actions relating to financings by Orange County, California and other local issuers that were dependent upon the earnings of investment pools managed by Orange County. The SEC charged that the disclosure documents used by Orange County in issuing its short-term securities failed to disclose information material to investors in that, among other matters, they did not describe either the investment strategy of the County investment pools or the dependence on the success of such strategy to repay investors. Most simplistically, the County was borrowing short and investing long, which works only so long as short-term rates are lower than long-term rates. The SEC obtained, in federal district court, injunctions against two county employees and, in an administrative proceeding, cease-and-desist orders against the County (as the issuer) and the County Board of Supervisors (as the issuer s legislative body). The SEC did not bring an enforcement action against the individual members of the County Board of Supervisors. The SEC did, however, issue its 21(a) Report, the Orange County Report, articulating its views of the 9 15 U.S.C. 77q. 10 SECURITIES AND EXCHANGE COMMISSION, REPORT OF INVESTIGATION IN THE MATTER OF COUNTY OF ORANGE, CALIFORNIA AS IT RELATES TO THE CONDUCT OF MEMBERS OF THE BOARD OF SUPERVISORS, SEC Rel. No (Jan. 24, 1996). Page 4 of 10
7 federal securities laws as they pertain to the responsibilities of members of a municipal legislative body. The Orange County Report set forth the following two principles: 1. "a public official may not authorize disclosure that the official knows to be false"; 2. "nor may a public official authorize disclosure while recklessly disregarding facts that indicate that there is a risk that the disclosure may be misleading" The first principle is straightforward. However, with respect to the second principle, further examination is required to determine what is meant by "recklessly" and whether this means that each member of the issuing body must review the disclosure documents prepared by the financing team. The Orange County Report states that in the SEC's view a public official has acted recklessly if the "public official has knowledge of facts bringing into question the issuer's ability to repay the securities" and, notwithstanding such knowledge, the public official fails to take steps "appropriate under the circumstances to prevent the dissemination of materially false or misleading information regarding those facts." With regard to the concept of steps that are "appropriate under the circumstances, the Orange County Report provides the following guidance: "such steps could have included becoming familiar with the disclosure documents and questioning the issuer's officials, employees or other agents about the disclosure of those facts." Before describing certain other key SEC enforcement actions against municipal securities issuers, consideration of the reliance-on-professionals defense is warranted. Although the SEC acknowledges such a defense, it is rarely successful. In order for this defense to be successful, there are four criteria that must be satisfied. A public official must: (i) make complete disclosure to the appropriate professional of the potentially material mistake or omission at issue, (ii) request the professional s advice as to what disclosure is proper, (iii) receive advice regarding the appropriate disclosure, and (iv) rely in good faith on that advice. The principal reason that this is a difficult defense to establish is because there will invariably be a dispute between the issuer and the professionals regarding whether there was a complete disclosure of the potentially material mistake or omission at issue. Page 5 of 10
8 There are a number of other seminal securities enforcement actions against municipal issuers and the principal lessons from such actions are highlighted below. Maricopa County, Arizona (1996) 11 In this action, omissions concerning an issuer's financial condition were the basis for an enforcement action, regardless of whether such condition would have affected negatively the ability to pay principal and interest in a timely fashion. The SEC apparently reasoned that an issuer s financial condition impacts the credit position of the issuer and potentially the value of its securities in the secondary market. This enforcement action involved a general obligation bond issue secured by an unlimited ad valorem property tax. Maricopa County was current in its payment of debt service on all of its general obligation ( GO ) bonds. The total outstanding GO debt at the time the bonds were issued was approximately $169 million and the County s property tax roll was over $13 billion. The County failed to disclose that (i) it had developed a deficit in its general fund, (ii) the deficit in its Medical Center fund had doubled to $31 million, and (iii) the proceeds would be used to finance an operating deficit. City of Miami, Florida (2001) 12 In this enforcement action, the City of Miami s ever-growing deficit was masked by transfers from other funds and by the use of bond proceeds. There were misstatements alleged in the City s OSs, Comprehensive Annual Financial Report ( CAFR ), and transmittal letter to the CAFR. This misleading disclosure was material not only to prospective investors of Miami s bonds, but also to its current bondholders. The reliance on professional defense was not successfully supported in this action. Massachusetts Turnpike Authority (2003) 13 In the action against the Massachusetts Turnpike Authority, there were misrepresentations resulting from the delay in disclosing cost increases in a major tunnel project in connection with three municipal bond offerings in The Authority based the delay in disclosing the cost increases on the argument that the increases were speculative and not quantified. Furthermore, misleading disclosure prepared by the Authority was provided to two other state bond issuers that the Authority knew were going to use the information in bond offerings. The 11 In re Maricopa County, Ariz., SEC Rel. Nos , (Sept. 30, 1996). 12 In re City of Miami, Fla., SEC Initial Decisions Rel. No. 185 (June 22, 2001); In re City of Miami, Fla., SEC Rel. Nos , (March 21, 2003). 13 In re Massachusetts Turnpike Authority, SEC Rel. No (July 31, 2008). Page 6 of 10
9 Authority was charged with misrepresentation in its own offerings and in the offerings of the other two state issuers because the misrepresentations were made in the offer and sale of securities (although not its securities). San Diego Settlement (2006) 14 In the proceedings against the City of San Diego, it was established that the City failed to disclose material information regarding substantial and growing liabilities for its pension plan and retiree health care and its ability to pay those obligations in the future. This information was omitted in the City s disclosure documents for its 2002 and 2003 offerings, in its continuing disclosures filed in 2003, and in its presentations to the rating agencies. As a result of these deficient disclosures, many people were fired or resigned at all levels of the City government, including the former Mayor, City Manager, City Auditor, City Treasurer, and Deputy City Manager for Finance. The release of audited financials was delayed for several years. The City had no ability to access the public markets for bond offerings from 2002 to early 2009 and was forced to borrow at higher costs through private placements. In addition, the City was subjected to numerous investigations, at a cost in excess of $30 million. Although the nature of the disclosure failures in San Diego, and where those failures occurred (POSs, CAFR, and rating agency presentation), did not break new ground, the SEC has emphasized the San Diego settlement because of its groundbreaking sanctions and the template it provides for possible legislation. In December 2007, the then Director of the SEC s Division of Enforcement gave a keynote speech entitled Lessons Learned from San Diego. 15 Two of the key lessons were: 1. Cities should consider whether their internal controls and systems produce financial reports and disclosure documents that are accurate and complete. 2. Cities should provide training to their officials and employees regarding the applicable disclosure requirements of the federal securities laws and [Governmental Accounting Standards Board] financial reporting provisions. 14 In re City of San Diego, Cal., SEC Rel. Nos , (Nov. 14, 2006). 15 Linda Chatman Thomsen, SEC, Speech before AICPA National Conference on Current SEC and PCAOB Developments, Washington, D.C: Lessons Learned from San Diego (Dec. 11, 2007), available at Page 7 of 10
10 Other SEC officials have made similar statements referencing the allegedly poor state of disclosure in the municipal securities markets. In July 2007, the SEC staff of various Divisions produced a White Paper which warned that investors in municipal securities are, in certain respects, afforded secondclass treatment under current law. 16 One of the recommendations was that issuers of municipal securities [should] establish policies and procedures for disclosure appropriate for the particular issuer. Responsibilities of the Municipal Issuer s General Counsel With that background regarding the various SEC enforcement actions, and the SEC s concerns regarding the state of municipal disclosure, it is appropriate to now turn to the responsibilities of the municipal issuer s general counsel. In the DISCLOSURE ROLES OF COUNSEL IN STATE AND LOCAL GOVERNMENT SECURITIES OFFERINGS, Third Edition, 17 ( Disclosure Roles ) the responsibilities of the municipal issuer s general counsel are examined. First, as issuer s counsel, in order to properly advise one s clients (the City as entity, City staff and City legislative officials) regarding their responsibilities and potential liabilities in the context of securities disclosure, it is helpful to be knowledgeable regarding the enforcement actions and guidelines in this paper. It is also important to keep in mind that there may be situations where there is a conflict of interest between the City as entity and either City staff or City legislative officials, in which event the latter may need to be advised to seek separate counsel. Second, issuer s counsel will generally be expected to provide one or more opinions in connection with a bond financing. Any such opinion may address the following: the organization and good standing of the issuer the issuer s corporate or governmental power to enter into the transaction the incumbency of the issuer s officials the due adoption, execution, and effectiveness of pertinent documents any pending or threatened litigation (or the absence thereof) Disclosure Roles advises that such opinions are relevant to disclosure practices since they confirm the absence of legal risks that otherwise would need to be disclosed. 16 SECURITIES AND EXCHANGE COMMISSION, STAFF REPORT ON THE DISCLOSURE AND ACCOUNTING PRACTICES IN THE MUNICIPAL SECURITIES MARKET (July 26, 2007). 17 American Bar Association, Section of State and Local Government Law, Committee on Regulation of Federal Securities, ABA Section of Business Law, National Association of Bond Lawyers, DISCLOSURE ROLES OF COUNSEL IN STATE AND LOCAL GOVERNMENT SECURITIES OFFERINGS, Third Edition (2009). Page 8 of 10
11 the absence of conflicts between bond documents and other issuer contracts a letter to the underwriters covering the adequacy of specific portions of the disclosure document Disclosure Roles advises that issuer s counsel is usually the most knowledgeable party with respect to certain matters pertaining to the issuer, such as litigation to which the issuer is a party. the lack of material litigation in competitive bid transactions Disclosure Roles advises that opinions of issuer s counsel [in the competitive bid context] historically have been limited to a no litigation opinion, not addressing the disclosure in the offering statement. Issuer s counsel, however, customarily provides limited opinions related to due authorization, execution, and delivery, and, in some cases, litigation challenging the issuance of the securities. In addition to delivering whatever opinion is negotiated, issuer s counsel more generally can create an atmosphere by which issuer officials and staff recognize the importance of good disclosure. This recognition must extend to all persons who directly or indirectly are responsible for producing parts of the OS. As demonstrated above, negligence or recklessness can result in significant time and money being required to get things back on track. Summary The federal securities laws apply to disclosures made by municipal securities issuers, both with respect to initial and ongoing disclosure. Three contexts of disclosure were examined - primary offerings, disclosure provided pursuant to continuing disclosure agreements, and any other information reasonably expected to reach investors. This paper also explored the standards that apply in determining whether such disclosure satisfies the federal securities laws - considerations of materiality of any omissions or misstatements as well as any negligence, recklessness or intent regarding the omissions or misstatements. In addition to exploring the circumstances and findings in the significant SEC enforcement actions involving municipal issuers, the paper also generally considered the types of SEC enforcement actions and actions by private plaintiffs which can be brought as a result of misleading disclosure. Besides the causes of action which can be brought by private plaintiffs, the SEC can bring administrative actions, civil actions in federal district court, and make criminal referrals to the United States Justice Department. Finally, the paper turned its focus to the responsibilities of counsel to municipal issuers. It is important that counsel to municipal issuers remain knowledgeable regarding key SEC guidelines and enforcement actions as they pertain to municipal issuers. Additionally, the opinions of issuer s counsel at bond closings will be important and can cover a wide array of topics. While Page 9 of 10
12 understanding each of the topics discussed throughout this paper is important to counsel of municipal issuers, such counsel s ability to create an atmosphere that encourages accurate disclosure is a crucial undertaking in seeking to ensure an issuer s compliance with the federal securities laws. Page 10 of 10
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