Potential Liabilities In The IPO Process
Both the Securities Act of 1933, as amended (“Securities Act”) and the Securities Exchange Act of 1934, as amended (“Exchange Act”) provide remedies to investors in the IPO process. The basic premise of such liability is that either an investor was not given an opportunity to review investment disclosure documents prior to making the investment, or such disclosure documents contained inaccurate information or failed to contain material information. In the coming months we will also analyze various IPO liability provisions.
Section 11(a) of the Securities Act covers material misstatements or omissions in the registration statement at the time the registration statement becomes effective (later clarifications do not necessarily “cure” defects). Section 11(a) provides relief to any person who has acquired a security registered in a registration statement, whether in the initial IPO or after market, who did not have knowledge of the misstatement or omission at the time of the purchase.
The liability under Section 11(a) extends to (1) the Issuer; (2) any person who signed the registration statement; (3) every director at the time of the filing of the registration statement; (4) every person who is named, with his consent, as being about to become a director; (5) experts named in the registration statement (such as accountants); and (6) underwriters. Section 11(a) is a strict liability provision, meaning that the investor does not have to prove that he relied on the misstatements or omissions, only that they existed. However, other than the Issuer, those facing liability can claim the defense of due diligence. For example, if a director takes all reasonable steps (including seeking the advice of experts, thoroughly reviewing all available documents and information, etc.) to verify the information in the registration statement, they may be relieved of liability.
The misstatements or omissions, however, must be material. Materiality is defined as whether the misstatements or omissions, considered in context, would affect the investment decision of a reasonable investor. The statute of limitations for Section 11 liability is one year from the discovery of the misstatements or omissions, but not more than three years from the effectiveness of the registration statement. Section 11 limits the damages available to the investor to “the difference between the amount paid for the security and either (1) the value of the security at the time bought; or (2) the price the security was later sold for, if already sold.
Section 12(a)(2) of the Securities Act imposes liability for false or misleading statements or omissions by prospectus or oral communications involved in the offer or sale of securities. This Section imposes liability upon sellers for offers or sales of any security by means of a prospectus or oral communication. The pertinent “moment of time” for considering liability is the time the investor makes a commitment for purchase. Use of this Section is only available to initial purchasers, not after market buyers. Liability is limited to persons who offer or sells the security; i.e. it does not automatically extend to directors, experts, etc. Section 12 requires that the investor proof causation that is, that they relied on the misleading information and as a result of relying on such information, they were damaged. Moreover, the seller of the securities can raise several defenses, such as proof that the investor had actual knowledge of the information or should have been aware of the information if they had taken reasonable care and inquiry.
Attorney Laura Anthony
Founding Partner, Legal & Compliance, LLC
Securities, Reverse Mergers, Corporate Transactions
Securities attorney Laura Anthony provides ongoing corporate counsel to small and mid-size public Companies as well as private Companies intending to go public on the Over the Counter Bulletin Board (OTCBB), now known as the OTCQB. For more than a decade Ms. Anthony has dedicated her securities law practice towards being “the big firm alternative.” Clients receive fast and efficient cutting-edge legal service without the inherent delays and unnecessary expense of “partner-heavy” securities law firms.
Ms. Anthony’s focus includes but is not limited to compliance with the reporting requirements of the Securities Exchange Act of 1934, as amended, (“Exchange Act”) including Forms 10-Q, 10-K and 8-K and the proxy requirements of Section 14. In addition, Ms. Anthony prepares private placement memorandums, registration statements under both the Exchange Act and Securities Act of 1933, as amended (“Securities Act”). Moreover, Ms. Anthony represents both target and acquiring companies in reverse and forward mergers, including preparation of deal documents such as Merger Agreements, Stock Purchase Agreements, Asset Purchase Agreements and Reorganization Agreements. Ms. Anthony prepares the necessary documentation and assists in completing the requirements of the Exchange Act, state law and FINRA for corporate changes such as name changes, reverse and forward splits and change of domicile.
Contact Legal & Compliance, LLC for a free initial consultation or second opinion on an existing matter.
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