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Business Law Section Newsletter

All Section Members are invited to contribute to the Newsletter.  Please submit articles, practice pointers and other contributions in MS word format via e-mail to Edwin A. Naylor, Editor, at

May 2015

May 2015
From the Colorado Bar Association
Business Law Section

Ed Naylor, Editor
In this issue...
Wavering on Waivers—Bad Boy/Bad Actor Waivers Under Federal and State Law
By Herrick K. Lidstone, Jr., Burns, Figa & Will, P.C.

Many companies raise money through private placements under Regulation D, especially under Rules 505 and 506. Many investment bankers assist companies in raising Regulation D capital. While there are a number of other exemptions from registration under federal law (including Rule 504 for up to $1 million; Rule 147 for intrastate exemptions; Rule 701 for compensatory benefit plans; and Regulation S for offshore transactions), Rules 505 and 506, and especially Rule 506, are by far the most frequently used exemptions. Those exemptions are not available to the extent the bad-boy disqualification rules apply.

The Long History of SEC Disqualifications

Rule 505, and Rule 240 before Rule 505 was effective, have been subject to certain disqualifications as defined in Rule 262 of Regulation A (17 CFR § 230.262). Rule 262 was first adopted in 1936 in SEC Rel. No. 33-632 (Jan 21, 1936) and was recently amended with the Regulation A+ rules adopted by the Securities and Exchange Commission (the “SEC”) on March 25, 2015 (SEC Rel. 33-9741). These disqualification provisions make the exemptions from registration under Regulation A and Rule 505 of Regulation D unavailable for an offering if, among other things, an issuer, any of its predecessors, or any affiliated issuer is subject to certain administrative orders, industry bars, an injunction involving certain securities law violations or specified criminal convictions.

Disqualification also occurs if any of the issuer’s directors, officers, general partners, ten percent beneficial owners of any class of the issuer’s equity securities, or promoters, underwriters, persons compensated for soliciting purchasers, or any of the underwriters’ or paid solicitors’ partners, directors, or officers, is subject to administrative orders, injunctions, associational bars or specified convictions. SEC Regulation C, Rule 405 provides that a well-known seasoned issuer (WKSI) can be disqualified from accessing the public capital markets on an accelerated and streamlined basis if it becomes an “ineligible issuer” as a result of administrative or civil sanctions, among other things. The definition of “ineligible issuer” was adopted with the WKSI rules in SEC Release 33-8591 (Aug. 3, 2005).

Disqualifications Brought to Rule 506

Historically, even with a disqualification under Rule 505, an issuer could use Rule 506. That has no longer been the case since September 23, 2013, when Rule 506(d) became effective due to the mandate set forth in the Dodd Frank Wall Street Reform and Consumer Protection Act of 2010. Rule 506(d) (the “Bad Actor Provisions”) is a disqualification from the ability to use Rule 506 by bad actors. While the Bad Actor Provisions are similar to the provisions under Regulation A (before the 2015 amendments), they were not the same. For example,

  • In Rule 506(d) one of the categories of covered persons includes beneficial owners of 20 percent or more of an issuer’s voting equity securities, whereas in Rule 262 of Regulation A and Rule 505 of Regulation D, the category includes beneficial owners of 10 percent or more of any class of the issuer’s equity securities.
  • Another category of covered persons in Rule 506(d), but not in Rule 262 and Rule 505, includes any investment manager of an issuer that is a pooled investment fund and any director, executive officer, or other officer participating in the offering, of any such investment manager or general partner or managing member of such investment manager.
  • Although the disqualifying events in Rule 506(d) are also similar to disqualifying events in Rule 262, they are broader in certain respects. In addition to certain administrative orders, industry bars, injunctions involving securities law violations and specified criminal convictions covered under Regulation A and Rule 505, the disqualifying events in Rule 506(d) also include:
    • Commission cease and desist orders involving scienter-based antifraud provisions of the federal securities laws and violations of Section 5 of the Securities Act; and
    • Final orders of certain state and federal regulatory authorities that impose a bar from association with a regulated entity, engaging in the business of securities, insurance or banking, or engaging in savings association or credit union activities, or a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative or deceptive conduct and is issued within ten years of the proposed sale of securities.

As amended, the Rule 262 Bad Actor disqualification is substantially the same as the Rule 506(d) Bad Actor disqualification. In neither rule is there a requirement that the actions from which the disqualification derives be scienter-based, although some actions (such as a criminal conviction, (Rule 262(a)(1) and Rule 506(d)(1)(i)) or a “scienter-based anti-fraud provision of the federal securities laws” (Rule 262(a)(5)(i) and Rule 506(d)(1)(v)(A)) do require some level of intent. Notably, the Bad Actor rules do not include final orders of Canadian provincial regulators in the list of disqualifying events.

The effective date for new Rule 262 is June 19, 2015, although there are complex transition rules in Rule 262(b). For the Bad Actor Provisions of Rule 506(d) to be applicable, the disqualifying events must have occurred on or after September 23, 2013. Where the events occurred before the effective dates of the rules (September 23, 2013 for Rule 506; June 19, 2015 for Regulation A), the issuers must still comply with the disclosure requirements of Rule 262(d) or Rule 506(e) (as applicable). (Note that the “disqualifying event” is not the action that led to the criminal conviction or final order of the applicable federal or state regulator, but the conviction or order.)

Much of this is explained in the SEC’s “A Small Entity Compliance Guide” (September 19, 2013).

Federal and State Ability to Create and then Waive a Disqualification

The SEC has the authority to bring enforcement actions that might result in a bar under the Bad Boy Provisions or the Bad Actor Provisions; so do the states. In Colorado specifically, the Colorado Division of Securities has the statutory authority to conduct investigations and issue subpoenas (C.R.S. § 11-51-601), enforce the securities laws by injunction (C.R.S. § 11-51-602), seek criminal penalties through the state attorney general’s office or through a district attorney (C.R.S. §§ 11-51-603, 603.5), seek civil enforcement (C.R.S. § 11-51-604(14)), and conduct administrative proceedings, including a very prompt-acting cease and desist proceeding (C.R.S. § 11-51-606(1.5)).

Depending on the findings in such proceedings, the respondent’s or defendant’s ability to use Rule 506 (or Rule 505) may be impacted. This clearly should be a consideration for any person negotiating a settlement of any SEC or state enforcement action because the result may be more than bargained for—not only the sanctions included in the order, but an incidental treatment as a Bad Boy, Bad Actor, or both. While the sanctions may be painful, the resultant inability to raise capital may be devastating.

As the New York Times reported on March 13, 2015 (at page B6), in a speech the previous day SEC Chair Mary Jo White discussed the fact that during 2013 and 2014, the SEC rejected 14 requests for waivers from the Bad Actor Provisions while granting 13 waiver requests. One of the more controversial waivers granted was to Oppenheimer & Company which settled a case that fell within the Bad Actor Provisions. Despite more than 30 regulatory actions over the previous decade, the SEC granted Oppenheimer a waiver. In her speech, Chair White attempted to distinguish enforcement actions from the resultant waivers that may be applicable.

SEC Chair White was responding to a speech a month earlier by Commissioner Daniel Gallagher. Commissioner Gallagher conflated the enforcement actions taken by the SEC with waivers. He described the SEC’s authority to impose sanctions as being “both remedial and punitive in nature.” He went on to say “that until such time as the Commission officially decides whether disqualifications will continue to be treated as sanctions or whether we will revert to the historical practice of treating them apart from the enforcement process, I will condition my vote on enforcement recommendations matters on an understanding of the planned disposition of requested waivers. A settlement should involve a meeting of the minds on all aspects of the resolution. A settlement should bring finality.” In the opinion of Commissioner Gallagher, where waivers are an important consideration, they should be considered with the other sanctions.

Seeking a Waiver From the SEC

Notwithstanding Commissioner Gallagher’s comments to the contrary, on March 13, 2015, the SEC Division of Corporation Finance issued updated guidance for persons seeking “Waivers of Disqualification under Regulation A and Rules 505 and 506 of Regulation D.” The guidance makes it clear that waivers will be treated separately from any enforcement proceeding that results in the disqualification and will be considered by the Division of Corporation Finance’s Office of Small Business Policy rather than by enforcement. When considering a waiver request, the guidance advises that the Division will consider the following factors, with the understanding that no single factor will be dispositive:

  • Who was responsible for the misconduct and what role the bad actor or actors have or had with respect to the party seeking the waiver. Depending on the circumstances and the conduct at issue, if misconduct committed by one or more individuals resulted in the waiver applicant’s disqualification, and the applicant removes or terminates its association with those individuals, the Division would generally view such actions taken as favorable to the waiver request.
  • Whether the misconduct occurred over an extended period or whether it was an isolated instance.
  • What remedial measures the party seeking the waiver has taken to address the misconduct, when those remedial measures began, and whether those measures are likely to prevent a recurrence of the misconduct and mitigate the possibility of future violations.
  • The severity of the impact on the issuer or third parties, such as investors, clients or customers, if the waiver request is not granted, and weigh any such impact against the facts and circumstances relating to the misconduct to assess whether disqualification would be a disproportionate hardship in the light of the parties involved in, and the nature of, the misconduct.

In Colorado

Like securities regulators in many states, the Colorado Securities Commissioner has the authority to issue cease and desist orders under C.R.S. §11-51-606(1.5), seek injunction under § 11-51-602, refer actions for criminal enforcement under § 11-51-603, or seek civil enforcement under § 11-51-604(14). Depending on how they are worded, orders issued by the Securities Commissioner or by a court in a state enforcement action may, or may not, fit within the Bad Actor Provisions of Rule 506(d).


It is important for Colorado lawyers when working with clients before the SEC and the Colorado Division of Securities (or the securities agency of any other state) to understand that waivers may be separate from the enforcement discussion. Many, if not most, enforcement actions are resolved by consent, without a hearing or a trial. If defense counsel in a securities enforcement proceeding in a federal or state forum is not familiar with the Bad Boy and Bad Actor Provisions, the sanctions against a respondent can be much more severe than the language of the eventual order. Disqualification from capital raising Rules 505 or 506, or from the Colorado Crowdfunding Act (when available), can be an unexpected consequence of a consensual settlement.

Furthermore, where Colorado has specific Bad Actor Provisions (such as those included in proposed H.B. 15-1246, the Colorado Crowdfunding Act), a federal waiver may not be sufficient to avoid disqualification under state law.

Where the discussions with the SEC or with the State Division of Securities are likely to result in sanctions which may result in disqualification from various capital raising alternatives under federal or state law, counsel and their clients should consider the ramifications before agreeing to any consensual order. That would be the time to discuss waivers and the concern that a federal waiver may not be sufficient under state law. Perhaps the concerns can be dealt with by limiting the language of the order; perhaps a waiver from the SEC and applicable state authorities will be required. The respondent should understand these issues before consenting to any sanction.

Post Script

In a MarketWatch opinion published May 20, 2015, the columnist discussed the Deutsche Bank order issued by the SEC on May 1, 2015 (SEC Rel. 33-9764) granting Deutsche Bank a waiver from being an ineligible issuer under SEC Rule 405 notwithstanding Deustche Bank’s guilty plea to wire fraud in April 2015 related to the worldwide manipulation of LIBOR (the London Interbank Offered Rate). The guilty plea, together with other related actions, resulted in Deutsche Bank paying fines and penalties of $2.519 billion. According to the dissent filed by Commissioner Kara M. Stein:

Deutsche Bank’s illegal conduct involved nearly a decade of lying, cheating, and stealing. This criminal conduct was pervasive and widespread, involving dozens of employees from Deutsche Bank offices including New York, Frankfurt, Tokyo, and London. Deutsche Bank’s traders engaged in a brazen scheme to defraud Deutsche Bank’s counterparties and the worldwide financial marketplace by secretly manipulating LIBOR. The conduct is appalling. It was a complete criminal fraud upon the worldwide marketplace.

Commissioner Stein noted that this was Deutsche Bank’s third waiver request in eight years, and she did not see any evidence “that Deutsche Bank’s culture of compliance and the reliability and accuracy of its future disclosures establishes good cause for a waiver.”

In her dissent, Commissioner Stein also noted that 100% of the twelve WKSI waivers granted since August 2013 went to large financial institutions. One can question whether the SEC will show the same leniency to smaller issuers applying for waivers under Rule 506 or Regulation A, or even well-known seasoned issuer (WKSI) status.

Group to Review Colorado’s Unincorporated Entity Statutes

More than 77,000 LLCs were formed in Colorado in 2014 as compared to fewer than 10,000 corporations. The Business Law Section has formed a group to review Colorado’s unincorporated entity statutes and determine whether, in light of case law and legislative developments, changes are warranted. If you would like to join the group, please attend a meeting in CLE’s classroom on the third floor at 1900 Grant Street, Denver at noon on June 2, 2015. Some discussion points are in the agenda linked here. If you would like to attend the meeting, please RSVP to

Business Law Section Activities
Bankruptcy Subsection

Bankruptcy Court Technology Trainings

The Bankruptcy Court and the CBA Bankruptcy Subsection are offering a free, one-hour, courtroom technology training in Courtroom C, U.S. Bankruptcy Court. Training sessions will be held from 10 to 11 a.m. on June 19, July 17, August 14, September 18, October 9, and November 13. For more information on the training, please contact Andy Johnson. Please RSVP to (303) 860-1115 or email

Full-Day Consumer Bankruptcy CLE
Friday, June 26, CLE Program: 8:30 a.m. to 4 p.m.: Networking Reception: 4 to 5 p.m

Come learn about the latest issues and updates in Chapter 7 and Chapter 13 bankruptcy cases, including marijuana issues in bankruptcy cases, rule changes, 6 Supreme Court cases on bankruptcy matters, and settlement strategies. Speakers include debtor’s counsel, creditor’s counsel, Chapter 7 trustees, Chapter 13 trustees, the United States Trustee and Bankruptcy Judges. Cost varies based on membership ($249–$349).

The program will be held at the CBA-CLE Classroom, 1900 Grant Street, Suite 300, Denver. This program is offered for 6 general CLE credits, including 1 ethics credit. Learn more and register online.

Financial Institutions Subsection

Financial Institutions Subsection Networking Happy Hour
Wednesday, June 17, 5:30 to 7:30 p.m

Co-sponsored by the Financial Institutions Subsection of the CBA Business Law Section

Please join us for a free happy hour to say “Thank You” to outgoing chair, Steve Suneson, and “Welcome” to our newly elected co-chairs.

The event will be held at Cru Food & Wine Bar (1442 Larimer Street, Larimer Square). Two complimentary drink coupons and hors d’oeuvres are included with registration. This is a free event, but for food planning purposes we ask that you register in advance. RSVP to, call 303-860-1115, ext. 727, or click here to register online. Please note you must be logged in to the website in order to register for the program.

We look forward to seeing you there!

The Financial Institutions Subsection will take a summer break from their CLE series. There are no programs in June, July and August, but will resume in September.

Franchise Subsection

Franchising Update: Lessons from Renewal Season and Trends in Litigation
Friday, May 29, Noon to 1 p.m. (Complimentary lunch will be provided)

Co-sponsored by the Franchise Subsection of the CBA Business Law Section

This program will provide a review of lessons learned from the 2015 renewal season. Additionally, the speakers will provide an overview of trends in current franchise litigation, including common claims, defenses, and outcomes.

This free program will be held at the CBA Executive Suite, 1900 Grant Street, 9th floor, Denver. The program is offered for 1 general CLE Credit. Pre-registration is required. Please RSVP by emailing or click here for more information or to register online. Please note you must be logged in to the website in order to register for the program. When registering, please indicate that you would like to participate by phone if you wish to do so. The day before the program, we will email the materials as well as the call in number to registered call-in participants.

International Transactions Subsection

CBA International Law Section and International Transactions Subsection Happy Hour
Thursday, June 4, 5:30 to 7:30 p.m.

The CBA International Law Section and International Transactions Subsection of the CBA Business Law Section invite you to attend our upcoming happy hour.

The event will be held at Appaloosa Grill, 535 16th Street, Unit 110, Denver. We will gather in the Wright Room, just above the main entrance to the Appaloosa Grill.

This is a free event, but for food planning purposes we ask that you register in advance. RSVP by May 31 to, call 303-860-1115, ext. 727, or register online. Please note you must be logged in to the website in order to register for the program. Please include any special dietary requirements with your RSVP. If leaving a message, please spell your name and include your phone number.

We look forward to seeing you there!

The International Transactions Subsection will take a summer break from their CLE series. There are no programs in June, July and August, but will resume in September.

Mergers & Acquisitions Subsection

The M&A Subsection will take a summer break from their CLE series. There are no programs in June, July and August, but will resume in September.

CBA-CLE Information

Unless noted, programs are held at the CBA-CLE offices, 1900 Grant St. Ste. 300, Denver

Emerging Trends in Economic Damages, Business Valuation and Lost Profits
Thursday June 4, 8:30 a.m. to 4:30 p.m.

Co-sponsored by the Colorado Society of CPAs and Colorado Bar Association CLE

Program topics include: Cost of Capital Update—What’s New and What’s Not New; Lost Profits and Economic Damages; The Courts as Gatekeeper of Expert Testimony; The Good, the Bad & the Ugly of Financial Expert Testimony; Optimizing Relationships Between Legal Counsel and Financial Experts; Direct and Cross Examination; and A View from the Bench.

This program is offered for 8 general CLE credits. Learn more and register online.

Nuts and Bolts of Like-Kind Exchanges—A “Build Your Practice” Program
Thursday, June 18, 9 a.m. to 12:30 p.m.

Co-sponsored by the CBA Business Law, Real Estate Law and Taxation Law Sections

This program is designed for business and real estate lawyers and newer tax lawyers who want to know how to take advantage of I.R.C. Section 1031 to defer taxable gain on qualifying property transactions. Examine and better understand the rules and requirements of like-kind exchanges, and the mechanics of properly structuring such exchanges, and learn how to avoid common mistakes and the best strategies for favorable tax treatment.

The program is offered for 4 general CLE credits. Learn more and register online.

Recent Homestudies

A Primer on Advising Nonprofit Organizations

24th Annual Institute on Advising Nonprofit Organizations in Colorado

Check out the complete catalog of CLE Homestudies—search by practice area or credits.


Colorado Bar Association CLE offers a number of substantive publications and some excellent business law books published by the American Bar Association including Practitioner’s Guide to Colorado Business Organizations, 2nd Ed. Browse the Table of Contents for more details.

Contributions for future newsletters are welcome —
Contact Ed Naylor at or 303-292-2900

This newsletter is for information only and does not provide legal advice.

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