Securities Exchange Act of 1934
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The Securities Exchange Act of 1934, 48 Stat. 881 (June 6, 1934), codified at et seq., was a sweeping piece of legislation in the United States. The Act and related statutes form the basis of regulation of the financial markets and their participants in the United States. It is commonly referred to as "the Exchange Act" or "the '34 Act".
Companies raise billions of dollars by issuing securities in what is known as the primary market. Contrasted with the Securities Act of 1933, which regulates these original issues, the Securities Exchange Act of 1934 regulates the secondary trading of those securities between persons often unrelated to the issuer. Trillions of dollars are made and lost each year through trading in the secondary market.
The full text of the act is available online.
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[edit] Securities and Exchange Commission
Section 4 of the Act (now codified as ) created the U.S. Securities and Exchange Commission (SEC) to enforce Federal securities laws. Joseph Kennedy, father of John F. Kennedy and Robert Kennedy, was appointed the first Chairman of the Commission in 1934.
[edit] Securities exchanges
One area subject to 34 Act regulation is the actual securities exchange -- the physical place where people purchase and sell securities (stocks, bonds, notes of debenture). Some of the more well known exchanges include the New York Stock Exchange, the American Stock Exchange, and regional exchanges like the Philadelphia Stock Exchange and Pacific Stock Exchange. At those places, agents of the exchange, or specialists, act as middlemen for the competing interests to buy and sell securities. An important function of the specialist is to inject liquidity and price continuity into the market. Given that people come to the exchange to easily acquire securities or to easily dispose of a portfolio of securities, the specialist's role is uniquely important to the exchange.
[edit] Securities associations
The 34 act also regulates broker-dealers without a situs for trading securities. A telecommunications infrastructure has developed to provide for trading without a physical location. Previously these brokers would find stock prices through newspaper printings and conduct trades verbally by telephone. Today, a digital information network connects these brokers. This system is called NASDAQ, standing for the National Association of Securities Dealers Automated Quotation System.
[edit] Self regulatory organization (SRO)
The 34 Act regulates NASDAQ both through regulations that apply to the association, and by requiring that it have an independent oversight organization - a self regulatory organization (or SRO). The SRO for NASDAQ is the NASD, the National Association of Securities Dealers. The 34 Act requires virtually all broker-dealers to be registered with NASD, placing brokers under the Securities and Exchange Commission's direct oversight and under the NASD's oversight.
[edit] Other trading platforms
In the last 30 years, brokers have created two additional systems for trading securities. The automatic trading system, or ATS, is a quasi exchange where stocks are commonly purchased and sold through a smaller, private network of brokers, dealers, and other market participants. The ATS is distinguished from exchanges and associations in that the volumes for ATS trades are comparatively low, and the trades tend to be controlled by a small number of brokers or dealers. ATS acts as a niche market, a private pool of liquidity. Reg ATS, an SEC regulation issued in the late 1990s, requires these small markets to 1) register as a broker with the NASD, 2) register as an exchange, or 3) operate as an unregulated ATS, staying under low trading caps.
A specialized form of ATS, the Electronic Communications Network (or ECN) has been described as the "black box" of securities trading. The ECN is a completely automated network, anonymously matching buy and sell orders. Many traders use one or more trading mechanisms (the exchanges, NASDAQ, and the ECN or ATS) to effect large buy or sell orders -- conscious of the fact that overreliance on one market for a large trade is likely to unfavorably alter the trading price of the target security.
[edit] Brokers
One central element of the '34 Act is the regulation of broker-dealers. The Act regulates them principally by making the definition of broker extremely broad to include "any person engaged in the business of effecting transactions in securities for the account of others" (see Act section 3(a)(4), codified at ). One problematic area in the application of the definition of broker involves persons who refer buyers to a broker or issuer (finders or promoters). A body of case law, subsequent SEC regulation, and NASD oversight together place tight restrictions on 1) the commissions that brokers can receive for their services, 2) the amount of notice that brokers must give their clients when trading in securities, 3) the broker's due dilligence requirements in finding securities that meet their clients needs, and 4) the broker's obligation not to compromise their clients by disclosing or trading on material nonpublic information.
[edit] Issuers
While the '33 Act recognizes that timely information about the issuer is vital to effective pricing of securities, the '33 Act's disclosure requirement (the registration statement and prospectus) is a one time affair. The 34 Act extends this requirement to securities traded in the secondary market. Provided that the company has more than a certain number of shareholders and has a certain amount of assets (500 shareholders, above 10 million in assets, per Act sections 12, 13, and 15), the 34 Act requires that issuers regularly file company information with the SEC on certain forms (the annual 10k filing, and the quarterly 10q filing). The filed reports are available to the public via EDGAR. If something dramatic happens with the company (change of CEO, change of auditing firm, destruction of a significant number of company assets) the SEC requires that the company -- in short order -- issue an 8k filing that reflects these changed conditions (See Reg FD). With these regularly required filings, buyers are better able to assess the worth of the company, and buy and sell the stock according to that information.
[edit] Antifraud provisions
While the '33 Act maintained an antifraud provision (Section 17) when the '34 Act was promulgated, questions remained about the reach of that antifraud provision, and whether a private right of action existed for purchasers (meaning that ordinary people, and not just the government, could maintain a lawsuit against the bad actor). As it developed, section 10(b) of the 1934 Act and SEC Rule 10b-5 have sweeping antifraud language. Section 10(b) of the Act (as amended) provides (in part):
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- It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange [ . . . ]
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- (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement (as defined in section 206B of the Gramm-Leach-Bliley Act), any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
Section 10(b) is codified as .
It's hard to overstate the breadth and utility of section 10b, and Rule 10b-5, in the pursuance of securities litigation. 10b-5 has been employed to cover insider trading cases, but has also been used against companies for price fixing (artificially inflating or depressing stock prices through stock manipulation), bogus company sales to increase stock price, or even a company's failure to communicate relevant information to investors. Many plaintiffs in the securities litigation field plead violations of 10b and 10b-5 as a "catchall" allegation, in addition to the more specific antifraud provisions in the 34 Act.
[edit] Exemptions from reporting because of national security
Section 13(b)(3)(A) of the Securities Exchange Act of 1934, states that "with respect to matters concerning the national security of the United States," the President or the head of an Executive Branch agency may exempt companies from certain critical legal obligations. These obligations include keeping accurate "books, records, and accounts" and maintaining "a system of internal accounting controls sufficient" to ensure the propriety of financial transactions and the preparation of financial statements in compliance with "generally accepted accounting principles."
On May 5, 2006, in a notice in the Federal Register, President Bush delegated authority under this section to John Negroponte, the Director of National Intelligence. Administration officials told Business Week that they believe this is the first time a President has ever delegated the authority to someone outside the Oval Office. [1]
