Post-JOBS Act Challenges and Solutions in “Private ...

Berkeley Center for Law, Business and the Economy

Post-JOBS Act Challenges and Solutions in "Private" Secondary Trading Markets

Robert Bartlett UC Berkeley School of Law

2012 SEC Government-Business Forum on Small Business Capital Formation

November 15, 2012

Introduction

Should the JOBS Act have considered adding some form of mandatory scaled disclosure for this new space?

? The conventional view of distinguishing "public" from "private" firms:

OWNERSHIP:

Private (few shareholders)

?12(a); ?12(g) trigger

Public (many dispersed shareholders)

DISCLOSURE:

Private

(Exempt from ?13 Reports)

Space created by Titles V & VI of the JOBS Act

No federal mandatory disclosures

Smaller Reporting Companies

Public (?13 Filer)

Accelerated Filers, Large Accelerated Filers, all ofothr ienterrnNalousne-only Accelerated Filers

2

Outline

? Brief overview of how firms with public trading can be exempt from federal mandatory disclosure obligations.

? Some problems with this state of affairs after the JOBS Act for both investors and issuers.

? What the Commission can do about it.

for internal use only

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