Updating the definition of A “Dealer”: changes by SEC

Woman in blue shirt with arms crossed, next to the text "Updating the definition of a 'Dealer': Changes by SEC."

 

In this special article written by Laura Anthony from Securities Law Blog, we’ll learn more about the recent matter regarding the definition of “ a dealer” and changes by SEC. 

The SEC has finalized new rules amending the definition of a “dealer” under the Exchange Act, following a long time of litigation against small-cap and penny stock convertible debt lenders. Despite the changes, these rules do not provide much-needed regulatory clarity for this sector.

Keep reading and learn more.

Changes by SEC: New Rules

Two years after proposing rule changes (see HERE) the SEC has adopted final new rules amending the definition of a “dealer” under the Exchange Act.  Although the rule change comes after years of a continuous stream of litigation against small-cap and penny stock convertible debt lenders, the new rules specifically fail to provide regulatory clarity to this sector of the marketplace.

The amendments are intended to require certain proprietary or principal traders and liquidity providers to register as either a dealer or government securities dealer as applicable.  The rules amend Exchange Act Rules 5a5-4 and 3a44-2 to enhance the definition of “as part of a regular business” in Sections 3(a)(5) and 3(a)(44) of the Exchange Act.  The enhancement, however, is as to large proprietary traders and government securities dealers, leaving small cap traders to continue with rule making through judicial precedence.

Background

Although the amended rules are not limited to participants in the U.S. Treasury markets, it is clear that is the focus and impetus for the change.  The expansion of trading in the Treasury markets has primarily been as a result of the proliferation of electronic trading mechanisms including automated, algorithmic systems that now account for half of the daily trading volume.  As a result of the liquidity generated, these trading systems generally fall within the historical definition of a “market maker” in that they are market professionals that the public looks to for liquidity.

The new rules require any market participants that meet specified activity levels to register as a dealer or government securities dealer, depending on the markets in which they trade.  As such, the rule will primarily require the registration of principal trading firms and proprietary trading firms (PTFs) though some private funds may be within the scope as well.

Notably, the rule does not encompass the many small-cap investors that are the subject of SEC enforcement proceedings for the failure to register as a dealer.  To date, the SEC has only filed actions for unlicensed dealer activity against investors that invest specifically using convertible notes in penny stock issuers.  There is nothing in the broker-dealer regulatory regime or guidance that limits broker-dealer registration requirements based on the form of the security being bought, sold or traded or the size of the issuer.  The SEC has had a series of wins in the pending litigations, but at the end of the day, it leaves market participants that invest in exchange traded companies, but that do not meet the activity levels in the new rules, with legal uncertainty as to whether they are, or could be, operating as an unlicensed dealer.

The new rules exclude “smaller participants” that “control less than $50 million in total assets” as these participants are unlikely to be able to engage in the significant liquidity provision that is the focus of the rules.  Registered investment companies are also excluded as they are already subject to robust regulations; however, registered investment advisors (RIAs) are not excluded.

Unfortunately for market participants, the SEC is unapologetic concerning its failure to provide guidance to the myriad of small-cap lenders/investors that are now engaged in litigation or under investigation.  The SEC hedges, stating that “the final rules are one way to establish that a person is a dealer or government securities dealer; otherwise applicable court precedent and Commission interpretations will continue to apply.”  To drive the point home, the final rule itself contains a provision stating that “no presumption shall arise that a person is not a dealer or government securities dealer solely because that person does not satisfy the standards of the final rules.”

Definition of “Dealer” and “Government Securities Dealer”

Section 3(a)(5) of the Exchange Act defines the term “dealer” to mean “any person engaged in the business of buying and selling securities … for such person’s own account through a broker or otherwise,” but excludes “a person that buys or sells securities … for such person’s own account, either individually or in a fiduciary capacity, but not as a part of a regular business.”  The statutory exclusion from the definition of “dealer” is often referred to as the “trader” exception.  Absent an exception or an exemption, Section 15(a)(1) of the Exchange Act makes it unlawful for a “dealer” to affect any transactions in any security unless registered with the SEC in accordance with Section 15(b) of the Exchange Act.

Similarly, Section 3(a)(44) of the Exchange Act provides, in relevant part, that the term “government securities dealer” means “any person engaged in the business of buying and selling government securities for his own account, through a broker or otherwise,” but “does not include any person insofar as he buys or sells such securities for his own account, either individually or in some fiduciary capacity, but not as part of a regular business.”

The amended rule (and the dealer litigation in the small-cap marketplace) focuses on defining a “regular business.”  Prior to the rule amendment the Exchange Act did not define the term.  In determining whether a trader is engaged in a “regular business” of buying and selling securities, the courts and SEC consider: (i) the frequency of activity; (ii) nature of tracing activity; (iii) acting as a market maker or specialist on an organized exchange or trading system; (iv) acting as a de facto market maker or liquidity provider; and (v) holding oneself out as buying or selling securities at a regular place of business.

Moreover, the changes by the SEC state that dealers include those who are willing to buy and sell contemporaneously and often quickly enter into offsetting transactions to minimize the risk associated with a position. In contrast, traders are “market participants who provide capital investment and are willing to accept the risk of ownership in listed companies for an extended period of time.” Such an investor is generally just considered a “trader” and is exempt from dealer registration.  The SEC has also stated that “it makes little sense to refer to someone as ‘investing’ in a company for a few seconds, minutes, or hours.”

The SEC has adopted new Rules 3a5-4 and 3a44-2, to further define a “dealer” and “government securities dealer” to identify certain activities that would constitute a “regular business” requiring a person engaged in those activities to register as a “dealer” or a “government securities dealer,” absent an exception or exemption.

The amended rules set forth qualitative standards designed to more specifically identify activities of certain market participants who assume dealer-like roles. Although the proposed rule also included and amendment to the definition of a “government securities dealer” to include a bright-line quantitative test where a person will be deemed a dealer regardless of whether they meet the qualitative standards, the SEC eliminated that provision from the final rule.

As mentioned above, persons that have or control total assets of less than $50 million are excluded from the new definition as are registered investment companies.  RIAs are not excluded, although the rules do include provisions for determining when an RIA is acting for their own account as opposed to for the account of clients.

Qualitative Standards

The final rule expands upon the current definitions to include two types of activities that are considered to have the effect of providing liquidity to other market participants.  In particular: (i) regularly expressing trading interest that is at or near the best available prices on both sides of the market for the same security, and that is communicated and represented in a way that makes it accessible to other market participants (“expressing trading interest factor”); or (ii) earning revenue primarily from capturing bid-ask spreads, by buying at the bid and selling at the offer, or from capturing any incentives offered by trading venues to liquidity-supplying trading interests (“primary revenue factor”).

“Own Account” Definition

In this context of changes by SEC, the final rule has revised the definition of “own account” to mean an account: (i) held in the name of that person; or (ii) held for the benefit of that person. In addition, to avoid the creation of multiple legal entities or accounts to avoid regulation, the SEC has adopted an anti-evasion provision that prohibits: : (1) engaging in activities indirectly that would satisfy the qualitative factors; or (2) disaggregating accounts.

Exclusion

The following are excluded from the new rules: (i) central banks; (ii) sovereign entities; (iii) international financial institutions; (iv) registered investment companies; and (v) persons that have or control less than $50 million in total assets.

Compliance

A person that is required to register as a dealer or government securities dealer under the new rules, has one year from the effective date to comply.  The effective date of the new rules is April 29, 2024.  As compliance will involve both the registration with the SEC (Form BD) and membership with an SRO (FINRA), those affected should begin the process quickly.

Final insights

While these changes by SEC aim to redefine dealers and government securities dealers, many small-cap investors still face uncertainty. As the regulatory landscape evolves, it is essential for ongoing dialogue between regulators and market participants to ensure a balanced and transparent marketplace. It’s important that all participants stay vigilant and seek legal advice to navigate these complexities in the private capital markets.

 

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