In an era of increased scrutiny and regulation of the municipal market, the final rules on what constitutes, and the registra- tion of, “municipal advisors”, became effective July 1, 2014. Concurrently, the SEC initiative to encourage issuers, obligat- ed persons, such as hospitals in conduit financings (together, “issuer” or “issuers”), and underwriters to self-report possible violations of the continuing disclosure requirements of Rule 15c2-12 of the Securities Exchange Act of 1934 (the “Exchange Act”) made in prior offering documents continues to be in ef- fect until the deadline for self-reporting, September 10, 2014. Here is a brief summary of both.
I. “Tell It Like It Is”-- Municipalities Continuing Disclosure Cooperative Initiative (“MCDC”).
Rule 15c2-12, which requires a continuing disclosure under- taking regarding: (i) a security, (ii) the issuer and its financial data and operations, and (iii) the occurrence of certain materi- al events, also requires in the final official statement prepared in connection with the offering of securities the disclosure of any failure to comply with the disclosure requirements of the Rule 15c2-12 within the prior five years. MCDC solely ad- dresses violations of such compliance assertions in the final offering statement. If such a failure occurs, the SEC may file enforcement actions against the issuer under Section 17(a) of the Securities Act of 1933 (the “Securities Act”) or Section 10(b)of the Exchange Act. The SEC may also charge underwriters with violating anti-fraud provisions if they failed to exercise adequate due diligence in determining whether issuers have complied with the disclosure requirement in the final offi- cial statement. An underwriter cannot substantiate any rea- sonable basis for believing in the truth and accuracy of a key representation in the offering documents if the due diligence conducted was inadequate.
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