For more than 30 years, Fillmore Spencer securities attorneys have helped companies, startups investors, brokers, investment advisors, and the officers, directors, partners and owners of corporations, limited liability companies (LLCs) and partnerships raise capital, effect mergers and acquisitions and make and defend securities claims. We also help parties respond to actions by government agencies like the Securities and Exchange Commission (SEC), the Commodities and Futures Trading Commission, the Utah Division of Securities (UDS), the Utah Division of Real Estate, the Utah Department of Financial Institutions and the Utah Department of Insurance.
Utah’s definition of securities includes shares, stocks, LLC interests, bonds, promissory notes, limited partnership interests and oil and gas partnerships. Utah and federal laws define a security as any transaction in which one person gives money or other value to another with the expectation of a profit in return, in effect an “investment contract.” These definitions of securities make almost all debt and capital raising subject to securities law compliance. Many companies are simply unaware of the significant implications of those laws.
Our securities lawyers advise clients on complying with the law, including:
Rule 506 permits an issuer to raise an unlimited amount of capital from an unlimited number of accredited investors and up to 35 non-accredited investors who must be “sophisticated” investors. Purchasers must buy for investment only, and resale is restricted.
To minimize the risk that a Utah private placement will be deemed a public offering, Utah enterprises may rely on SEC Regulation D, Rule 505 as a “safe harbor.” Rule 505 permits a registration exemption for offers and sales of securities totaling up to $5 million over any 12-month period. Under this exemption, securities may be sold to an unlimited number of accredited investors and up to 35 unaccredited investors, but the latter do not need to satisfy sophistication standards. Purchasers must buy for investment only, and not for resale. The issued securities are restricted: investors may not sell for at least two years without registering the transaction.
Real estate securities must be federally covered, registered or exempt and are treated like other securities: The seller must be licensed or exempt from license to sell the securities, the buyer must be given full disclosure of relevant information.
But what might be a real estate security elsewhere is not necessarily such in Utah. Under federal securities law and most states’ securities laws, when one person solicits another to purchase a “tenant-in-common” (TIC) interest in real estate, the interest is typically considered a security. Under Utah law, the buying and selling of TIC interests are not considered securities transactions.
The sale of TIC interests are regulated exclusively by Utah real estate law, which means Utah investors considering TIC interests likely will not be accorded protection by securities laws: Sellers are not required to be licensed, there is no requirement for full disclosure and the Utah Securities Division may not be able to pursue allegations of misconduct and fraud. However, the issuance of TIC interests will be subject to Utah real estate laws and licensure and could be subject to federal securities laws.
State regulators have seen problems with non-traded real estate investment trusts, properties that are bank owned, pending short sale, or in foreclosure, and flimsy promises of investment funds being secured by an interest in real property that is already highly leveraged and has no remaining equity. As with other securities activities, the counsel of a seasoned securities attorney is advised
Fillmore Spencer LLC attorneys are versed in the resolution of securities disputes, whether by negotiation, arbitration or litigation, including litigation involving securities fraud.
Fillmore Spencer LLC securities attorneys bring valuable insights to issuing securities and other transactions and work to ensure your company’s capital-raising efforts are not only effective but subject to low risk. Call us to arrange for an obligation-free consultation at (801) 426-8200 or contact us online.