The SEC identified risks to be considered by market participants recommending or making investments in emerging markets.

In a joint SEC statement, Chair Jay Clayton, Public Company Accounting Oversight Board (“PCAOB”) Chair William D. Duhnke III, Chief Accountant Sagar Teotia, Division of Corporation Finance Director William Hinman and Division of Investment Management Director Dalia Blass highlighted the limitations on the SEC’s ability to enforce high-quality disclosure standards in emerging markets.

According to the SEC, such emerging markets, including China, often present disclosures that are in “substantially” the same form as those of U.S. domestic companies. However, the SEC warned that the disclosure information may often be “incomplete or misleading.” The SEC identified the below risks and related considerations as to emerging markets.

– Associated Risks and Disclosures. The SEC stated that companies operating in emerging markets experience greater risks, and therefore encouraged (i) issuers to disclose such matters to investors and (ii) funds investing in emerging markets to ensure that their material risk disclosures are in compliance with federal securities laws. The SEC emphasized that boilerplate disclosures are often insufficient in such circumstances.
– Variation in Quality of Financial Information, Requirements and Standards. The SEC recommended that (i) investors and financial professionals examine the nature and quality of financial information (e.g., financial reporting and audit requirements) when considering certain investments to make or recommend and (ii) issuers discuss related financial reporting matters with independent auditors or audit committees, if necessary.
– The Continual Inability of the PCAOB to Assess Audit Work Papers in China. The SEC urged investors to consider the PCAOB’s inability to inspect PCAOB-registered accounting firms in China.
– Limitations of U.S. Authorities to Bring Action. The SEC advised issuers to make clear the “substantial” difficulties experienced by U.S. authorities, including the SEC, in bringing enforcement actions against non-U.S. companies or non-U.S. persons.
– Shareholders’ Limitation of Rights. The SEC stated that shareholder claims, such as class action securities law and fraud claims, are generally “difficult or impossible” to pursue legally or logistically in many emerging markets. As a result, the SEC noted that issuers should explicitly state such risks to shareholders.
– Passive Investing Strategies. The SEC cautioned investors that index funds typically do not weight securities based on (i) investor protection limitations or (ii) variations in the quality of financial reporting and oversight mechanisms available.
– Considerations Overall. The SEC advised investment advisers, broker-dealers and market participants in general to consider the limitations and risks associated with emerging markets when recommending investments in such markets.

The SEC noted that these considerations, while not an exhaustive list, are often significant, and vary based on jurisdiction.

LOFCHIE COMMENTARY

Though the statement concerns emerging markets generally, a quick search turns up 29 references to China and none to Brazil, Russia, or India. Chinese issuers seeking to offer securities in the United States may expect to face closer scrutiny of their offering documents. Firms participating in such offerings must anticipate the risks of review of their diligence should an offering go badly. Likewise, funds that invest offshore should review their disclosures. Advisers and broker-dealers that recommend investments in Chinese issuers should take account of suitability considerations in light of the SEC’s statement.

The SEC adopted rule and form amendments to “modify the registration, communications, and offering processes” for business development companies (a type of closed-end investment company that is not registered, “BDCs”) and registered closed-end investment companies. The benefits of these rule changes were available to operating companies and are now being extended to funds, in accordance with a 2018 Congressional mandate expressed in the Small Business Credit Availability Act (the “BDC Act”) and the Economic Growth, Regulatory Relief and Consumer Protection Act (the “EGRRA Act”).

The new rule amendments include:

– expanding the definition of “well-known seasoned issuer” to capture eligible funds (generally, those having a public float of at least $700 million and meeting certain other regulatory conditions) to permit them to quickly sell securities “off the shelf” using short-form registration statements, provided that such funds include certain disclosures in their annual reports;

– making Securities Act Rule 486 (“Effective Date of Post-Effective Amendments and Registration Statements Filed by Certain Closed-End Management Investment Companies”) available to registered closed-end funds and BDCs that are involved in continuous offerings, so that they may immediately make effective changes to a registration statement;

– allowing certain funds to use communications rules designed to reduce regulatory costs and provide information to investors more quickly (e.g., permitting the use of the “free writing prospectus”);

– permitting closed-end funds that function as interval funds to register an indefinite number of shares and pay SEC fees only when the shares are actually sold;

– eliminating the requirement that funds provide new purchasers with copies of all previously filed materials, which may instead be made available on a website; and

– imposing certain tagging requirements concerning registration statement information.

Affected funds will also be required to tag certain data in their registration statement. BDCs will be required to submit financial information of the same type that operating companies submit.

Broker-Dealer Research Reports
The SEC made the Securities Act Rule 138 research safe harbor available for broker-dealers publishing research about certain categories of a seasoned fund’s securities when the fund is distributing certain other securities.

No Form 8-K Requirements
Closed-end funds will not be required to file periodic reports on Form 8-K. The SEC determined that this additional reporting burden, to which operating companies are subject, was not necessary in light of current funds’ practices.

Commissioner Statements
SEC Chair Jay Clayton said that the extension of the disclosure and regulatory framework to BDCs would improve investor protections.

SEC Commissioner Elad Roisman praised the final rule amendments for making the BDC offering rules consistent with those applicable to operating companies.

SEC Commissioner Hester M. Peirce largely supported the relief provided by this rulemaking, but noted that the agency could have “offered additional relief without compromising investor protection.” Specifically, she stated that the SEC “unnecessarily restrict[s]” the amount of funds that will be able to benefit from the final rule amendments.

SEC Commissioner Allison Herren Lee criticized the final rule amendments for (i) “roll[ing] back investor protections”, (ii) failing to include the proposed Form 8-K reporting requirements, and (ii) allowing certain funds to make material changes in their registration statements that would become automatically effective without staff review. In addition, she objected to adopting a rulemaking during the COVID-19 pandemic.

The rule and form amendments will go into effect on August 1, 2020. The amendment regarding registration fee payments by interval funds and certain exchange-traded products will go into effect on August 1, 2021. Certain of the regulatory reporting requirements will not go into effect until 2022 or 2023.

LOFCHIE COMMENTARY

These rules are consistent with recent efforts to support the economy and small businesses. If the regulators are going to provide a means for retail investors to invest in small companies, supporting BDCs and closed-end investment funds seems one of the more promising paths; particularly as Regulation Best Interest and similar state suitability requirements may discourage broker-dealers from recommending individual investors buy securities issued by small issuers.

Notwithstanding Commissioner Lee’s objection that the rule amendments not be adopted during the pandemic seem, these rule amendments are not being rushed to market; they were proposed a year ago. When bad global events happen, the stock markets drop and investors lose money. SEC rule changes such as these would not provide protection against that.