OTC Markets companies that are uncertain if a proposed course of action may be a violation of federal securities law can work with their securities attorney to request a “no-action” letter from the SEC staff.
Experienced Securities Attorneys Draft Requests for No Action
SEC No Action Letters are drafted by experienced securities attorneys, and detail the Issuer’s request, provide an analysis of the particular facts and discuss the applicable laws and SEC rules which support the Issuer’s position.
SEC Staff Grants a Request for No Action
If the SEC staff grants the request for no action, this effectively states that the Commission would not take enforcement action against the Issuer based on the particular facts and representations as they appear in the request.
The SEC May Issue an Interpretive Letter in Response
The SEC staff may provide an interpretive letter in response to requests before issuing an SEC No Action Letter if clarifications of certain rules and regulations are necessary.
SEC No Action Letters are Limited to Specific Facts
It is important to note that the scope of the no-action relief is limited to the Issuer making the request and subject to all of the representations made in the request, such as the specific facts and circumstances involved. Because of this an Issuer is wise to word the request correctly, so that the actual facts and circumstances of the proposed action are carefully set forth in detail.
Lastly, an SEC No Action Letter does not create a legally binding precedent, and the SEC staff reserves the right to change positions from those reflected in prior SEC No Action Letters.
As guidance, the SEC provides a compilation of Staff No Action, Interpretive, and Exemptive Letters from the Divisions of Corporation Finance, Investment Management, and Trading and Markets, and the Office of the Chief Accountant in the “Staff Interpretations” section of SEC.gov.
This SEC compilation is searchable by category, which is helpful when discussing possible options with securities lawyers.
Matt Stout, securities compliance and regulation lawyer, represents OTC Issuers and large Shareholders in the process of seeking SEC No Action Letters. Mr. Stout can be reached at (410) 429-7076 or via email: email@example.com.