Securities Act of 1933

The Securities Act of 1933, also known as the 1933 Act, the Securities Act, the Truth in Securities Act, the Federal Securities Act, and the ’33 Act, was enacted by the United States Congress on May 27, 1933, during the Great Depression and after the stock market crash of 1929. It is an integral part of United States securities regulation. It is legislated pursuant to the Interstate Commerce Clause of the Constitution.

The Securities Act of 1933 was created and passed into law to protect investors after the stock market crash of 1929. The legislation had two main goals: to ensure more transparency in financial statements so investors could make informed decisions about investments; and to establish laws against misrepresentation and fraudulent activities in the securities markets.

It requires every offer or sale of securities that uses the means and instrumentalities of interstate commerce to be registered with the SEC pursuant to the 1933 Act, unless an exemption from registration exists under the law. The term “means and instrumentalities of interstate commerce” is extremely broad and it is virtually impossible to avoid the operation of the statute by attempting to offer or sell a security without using an “instrumentality” of interstate commerce. Any use of a telephone, for example, or the mails would probably be enough to subject the transaction to the statute.

The act also known as the “Truth in Securities” law, the 1933 Act, and the Federal Securities Act requires that investors receive financial information from securities being offered for public sale. This means that prior to going public, companies have to submit information that is readily available to investors.

Purpose

The primary purpose of the ’33 Act is to ensure that buyers of securities receive complete and accurate information before they invest in securities. Unlike state blue sky laws, which impose merit reviews, the ’33 Act embraces a disclosure philosophy, meaning that in theory, it is not illegal to sell a bad investment, as long as all the facts are accurately disclosed. A company that is required to register under the ’33 act must create a registration statement, which includes a prospectus, with copious information about the security, the company, the business, including audited financial statements. The company, the underwriter and other individuals signing the registration statement are strictly liable for any inaccurate statements in the document. This extremely high level of liability exposure drives an enormous effort, known as “due diligence”, to ensure that the document is complete and accurate. The law bolsters and helps to maintain investor confidence which in turn supports the stock market.

Registration process

Unless they qualify for an exemption, securities offered or sold to a United States Person must be registered by filing a registration statement with the SEC. Although the law is written to require registration of securities, it is more useful as a practical matter to consider the requirement to be that of registering offers and sales. If person A registers a sale of securities to person B, and then person B seeks to resell those securities, person B must still either file a registration statement or find an available exemption.

The prospectus, which is the document through which an issuer’s securities are marketed to a potential investor, is included as part of the registration statement. The SEC prescribes the relevant forms on which an issuer’s securities must be registered. The law describes required disclosures in Schedule A and Schedule B; however, in 1982, the SEC created Regulation S-K to consolidate duplicate information into an “integrated disclosure system”. Among other things, registration forms call for:

• A description of the securities to be offered for sale.
• Information about the management of the issuer.
• Information about the securities (if other than common stock).
• Financial statements certified by independent accountants.

Exemptions

Not all offerings of securities must be registered with the SEC. Section 3(a) outlines various classes of exempt securities, and Section 3(b) allows the SEC to write rules exempting securities if the agency determines that registration is not needed due to “the small amount involved or the limited character of the public offering”.:398 Section (4)(a)(2) exempts “transactions by an issuer not involving any public offering”[14] which has historically created confusion due to the lack of a specific definition of “public offering”; the Supreme Court provided clarification in SEC v. Ralston Purina Co.:357

Some exemptions from the registration requirements include:

• Private offerings to a specific type or limited number of persons or institutions;
• Offerings of limited size;
• Intrastate offerings; and
• Securities of municipal, state, and federal governments.

Regardless of whether securities must be registered, the 1933 Act makes it illegal to commit fraud in conjunction with the offer or sale of securities. A defrauded investor can sue for recovery under the 1933 Act.