Sections 13 and 16 Reporting Requirements- Sections 13 and 16 are individual SEC reporting requirements for officers, directors and greater than 5% shareholders of publicly reporting companies.
Section 13 require any person or group who directly or indirectly acquires beneficial ownership of more than 5% of the equity of an Exchange Act reporting company to file a statement with the SEC disclosing certain information. Section 13 is a key provision that allows shareholders and potential investors to evaluate changes in substantial shareholdings. The statement filed is either a Schedule 13D or 13G and the Schedules must be amended in the event of triggering changes to the information initially filed.
Section 16 of the Exchange Act requires officers, directors and 10% shareholders of an Exchange Act reporting company to file certain reports of securities holdings and transactions. These reports include an initial Form 3 and ongoing Form 4’s to report acquisitions and dispositions of securities. Section 16 was motivated by a belief that “the most potent weapon against the abuse of inside information is full and prompt publicity” and by a desire “to give investors an idea of the purchases and sales by insiders which may in turn indicate their private opinion as to prospects of the company.” The Sarbanes-Oxley Act accelerated the reporting deadline for most transactions to two business days and mandated that all reports be filed electronically on EDGAR and posted on the company’s website to facilitate rapid dissemination to the public.
Section 16 is also designed to discourage trading on inside information, and presumes that certain people inevitably benefit from their “insider” status. Accordingly any purchase and sale of securities by an officer, director or 10% shareholder, during any 6 month period can be matched and any resulting profit is recoverable by the company.
Neither Sections 16 nor 13 require intent or contain subjective standards. The failure to file, regardless of explanation, is a violation.
On September 10, 2014, the SEC filed 28 separate actions against officers, directors and major shareholders and an additional 6 actions against reporting companies, all stemming from violations of the reporting requirements contained in Sections 13 and 16. The SEC announced that it had created a task force to investigate violations using quantitative data sources and ranking algorithms to identify violators. The SEC settled with all but one of the charged for a total of $2.6 million in penalties.
Historically the SEC has rarely pursued separate actions for violations of Sections 13 or 16; rather, such claims would generally only be included when coupled with other claims. However, in keeping in line with its broken windows policy, and using technological advances to monitor, the SEC stated in a press release that it intends to vigorously police these sorts of violations through streamlined actions.
Moreover, in the past few years, a whole crop of plaintiffs attorneys have put monitoring systems in place to review all Form 3 and 4 filings under Section 16 and catch short swing profit trading prohibitions. These attorneys manage to quickly find a plaintiff shareholder to pursue violations, and are not afraid to file suit. Violations carry a strict liability standard and allow for recovery of attorneys fees, so even the smallest cases are winners and some attorneys have built an entire practice on these cases alone.
It has become more important than ever for individuals to be aware of and comply with their Sections 13 and 16 reporting requirements. In the next Lawcast in this series, I will begin to drill down on the specific reporting requirements under the rules and explain the added short swing profit prohibition under Section 16.
Laura Anthony, Esq.
Legal & Compliance LLC.
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West Palm Beach, FL 33401
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