Fundamentals of U.S. Securities Law 2023

U.S. Securities Regulation: Overview and Comparison to the Canadian Regime
6:15 p.m.

• Who are the players and what is the scope of their jurisdiction?
• Securities and Exchange Commission (SEC)
  • Role, composition, organization and division of the SEC and the Commodity Futures Trading Commission (CFTC)
  • Rule‑making, exemptive applications, no‑action letters and guidance
  • Limits on jurisdiction – cost‑benefit analysis and extraterritorial application
  • State securities regulation
• SEC attorney conduct rules
• Lawyers as Directors: When can you cross the
  line?

Private Placements and Resale Restrictions
7:15 p.m. 

Private Placement Techniques

• Section 4(2), Regulation D and Rule 144A
• Rule 506 (b) versus Rule 506 (c) – lifting of the ban on general solicitation
• Bad actor disqualifications
• Evolving practices regarding legends
• Due diligence requirements
• Treatment of warrant
• Role of lawyers in promoting full disclosure of risks to investors

Resale Restrictions

• Resales by affiliates and non‑affiliates of an issuer
• Resales within the United States under Rule 144
• Section 4(1‑1/2) – the “artificial” resale exemption
• Rule 144A – resales to qualified institutional buyers
• Offshore resales of securities

8:15 p.m. Break

Mergers and Acquisitions
8:15 p.m. 

Plans of arrangement

• Registered Merger Transactions
• Tender offer regulation
• Going private and affiliated transactions
• Issuer repurchase programs
• Role of corporate law, and particularly, Delaware corporate law
• Target defensive measures
• Activist shareholders as a catalyst for M&A activity

Public Offerings and Cross Border Transactions: Comparing the U.S. and Canadian regimes
6:15 p.m.

• Basic requirements of Section 5 of the Securities Act of 1933
• Foreign private issuer status and MJDS eligibility
• Form requirements: foreign and domestic issuers
• SEC offering rules – regulation of different types of communications and permitted testing of waters
• MJDS offerings
• Bought deal considerations
• Employee stock purchase and stock option plans and Form S‑8
• Blue sky requirements
• Resale registration statements
• Securities Act and Exchange Act liability

Securities Litigation and Enforcement
7:15 p.m. 

Litigation

• Realities behind U.S. class actions
• Standards for U.S. class actions
• Economics of securities litigation, including the appointment of class representatives, costs and financing class actions
• Limits on extraterritorial reach under the Morrison doctrine and court decisions involving forum non conveniens
• Recent trends in U.S. securities class action litigation
• Confidentiality and privilege under Canadian and U.S. law

Enforcement

• Overview of recent enforcement actions
• Use of administrative proceedings versus Federal Court enforcement actions
• Magnitude of penalties at the federal and state levels
• Circumstances in which admissions are being required by the SEC as a condition of settlements
• Judicial review of SEC settlements
• Role of whistleblowers in enforcement efforts and the SEC’s bounty program
• ‘Broken Window’ approach to enforcement
•  FINRA enforcement
• New theories of insider trading
• Cross‑border cooperation, MOUs, privacy concerns and constitutional protections

8:15 p.m. – Break 

Listing and Continuous Reporting

• The U.S. Securities Exchange Act: registration by Canadian issuers
  • Triggers for registering with the SEC
  • The Foreign Private Issuer concept, and differences in application of US securities laws to Foreign Private Issuers and U.S. domestic issuers
  • Ongoing SEC reporting obligations including Annual Reports on Form 20‑F, Form 40‑F and Form 10‑K
  • Beneficial owner reporting requirements
  • Listing on NYSE, NASDAQ and inclusion on the OTC Markets
  • Delisting and Deregistration