1933 жылғы Қағаз бағалы құжаттар туралы АҚШ федералдық заңы

US federal law regulating securities

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. 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 1933 Act was the first major federal legislation to regulate the offer and sale of securities. Prior to the Act, regulation of securities was chiefly governed by state laws, commonly referred to as blue sky laws. When Congress enacted the 1933 Act, it left existing state blue sky securities laws in place. It was originally enforced by the FTC, until the SEC was created by the Securities Exchange Act of 1934. The original law was separated into two titles. Title I is formally entitled the Securities Act of 1933, while title 2 is the Corporation of Foreign Bondholders Act, 1933. In 1939, the Trust Indenture Act of 1939 was added as Title 3. The original Title I contained 26 sections. In 1980, the Small Business Issuers' Simplification Act of 1980 amended section 4. In 1995, section 27 was added by the Private Securities Litigation Reform Act. The 1933 Act is based upon a philosophy of disclosure, meaning that the goal of the law is to require issuers to fully disclose all material information that a reasonable shareholder would need in order to make up his or her mind about the potential investment. This is very different from the philosophy of the blue sky laws, which generally impose so called "merit reviews". Blue sky laws often impose very specific, qualitative requirements on offerings, and if a company does not meet the requirements in that state then it simply will not be allowed to do a registered offering there, no matter how fully its faults are disclosed in the prospectus. The National Securities Markets Improvement Act of 1996 added a new Section 18 to the 1933 Act which preempts blue sky law merit review of certain kinds of offerings. Part of the New Deal, the Act was drafted by Benjamin V. Cohen, Thomas Corcoran, and James M. Landis, and signed into law by President Franklin D. Roosevelt.

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.

Rule 144 is not to be confused with Rule 144A. Rule 144A, adopted in April 1990, provides a safe harbor from the registration requirements of the Securities Act of 1933 for certain private (as opposed to public) resales of restricted securities to qualified institutional buyers. Rule 144A has become the principal safe harbor on which non U. S. companies rely when accessing the U. S. capital markets.

Regulation S is a "safe harbor" that defines when an offering of securities is deemed to be executed in another country and therefore not be subject to the registration requirement under Section 5 of the 1933 Act. The regulation includes two safe harbor provisions: an issuer safe harbor and a resale safe harbor. In each case, the regulation demands that offers and sales of the securities be made outside the United States and that no offering participant (which includes the issuer, the banks assisting with the offer, and their respective affiliates) engage in "directed selling efforts". In the case of issuers for whose securities there is substantial U. S. market interest, the regulation also requires that no offers and sales be made to U. S. persons (including U. S. persons physically located outside the United States). Section 5 of the 1933 Act is meant primarily as protection for United States investors. As such, the U. S. Securities and Exchange Commission had only weakly enforced regulation of foreign transactions, and had only limited Constitutional authority to regulate foreign transactions. This law applies to its own unique definition of United States person.

Violation of the registration requirements can lead to near strict civil liability for the issuer, underwriters, directors, officers, and accountants under §§ 11, 12(a)(1), or 12(a)(2) of the 1933 Act. However, in practice the liability is typically covered by directors and officers liability insurance or indemnification clauses. To have "standing" to sue under Section 11 of the 1933 Act, such as in a class action, a plaintiff must be able to prove that he can "trace" his shares to the registration statement in question, as to which there is an alleged material misstatement or omission. In the absence of the plaintiff having an ability to actually trace his shares to the allegedly defective registration statement, such as when securities issued at multiple times and not all under the same registration statement which contains the alleged defect are held together by the Depository Trust Company in its nominee name in a fungible bulk, the plaintiff may be barred from pursuing his claim for lack of standing. Over a fifth of all core federal filings included Section 11 allegations.