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Statement of Policy Regarding No-Action Determinations & Interpretative Opinions
Under the Missouri Securities Act of 2003, the commissioner of securities is authorized to provide limited guidance to those planning transactions or engaged in activities covered by the securities laws. Specifically, the commissioner may “provide interpretative opinions or issue determinations that the commissioner will not institute a proceeding or an action under this act against a specified person for engaging in a specified act, practice, or course of business . . . .” 1
These “no-action letters” and “interpretative opinions” enhance capital formation and ease business planning by guiding those structuring transactions. Moreover, as public documents, these tools inform issuers, members of the bar, and the public regarding the application of the securities laws.
The commissioner has issued this statement to inform interested persons about no-action letters and interpretative opinions and to clearly establish the parameters for seeking the same. The policy is presented in the form of answers to the most common questions regarding no-action letters and interpretative opinions. Click on any of the following questions for the policy’s response:
- “Should I ask for a no-action letter or an interpretative opinion?”
- “What types of questions will the commissioner not answer?”
- “How do I request a no-action letter or an interpretative opinion?”
- “What must my written request contain?”
- “What will I receive from the commissioner?”
- “What about any communications I have with the Securities Division staff?”
“Should I ask for a no-action letter or an interpretative opinion?”
Whether you request a no-action letter or an interpretative opinion depends on the type of response you want from the commissioner.
An interpretative opinion is the commissioner’s written opinion regarding an unsettled area of the law or whether an exemption is available to a presented situation. 2 With an interpretative opinion, you will receive the commissioner’s legal analysis regarding a specified statute or rule. For instance, many people ask for interpretative opinions to clarify the reach of definitions under the securities laws. Others seek clarity on the interplay between registration exemptions.
A no-action letter is a written response from the commissioner that the Division will not take enforcement action against the applicant given the facts presented. The commissioner makes no analysis of the provided facts but only states whether the transaction would merit enforcement. Applicants typically ask for a no-action determination when they only want assurance that, whatever the reason, the commissioner will not commence enforcement activity for a specified transaction.
Because of their structure, participants, and other factors, some transactions do not require the securities laws’ protections. Accordingly, planners sometimes request a no-action determination to confirm that, given the transaction’s particular circumstances, a minor or technical variation from a statute or rule will not result in an enforcement activity. In effect, a party is requesting permission to structure a transaction or engage in an activity that would otherwise involve technical noncompliance with the law. Please note: If you request a no-action determination for that sort of assurance, your letter must explain your special circumstances how compliance with the securities laws in your situation creates a unique hardship that is not consistent with those laws’ purposes.
“What types of questions will the commissioner not answer?”
The commissioner will not respond to requests that involve:
- Hypothetical situations, transactions, or anonymous parties. As explained below, the securities laws do not allow the commissioner to give no-action or interpretative relief to unspecified parties.
- Requests for confidential treatment. Under Missouri law, the commissioner cannot confidentially respond to interpretative or no-action requests. Missouri law treats those requests as “public records” and they are available for public examination. 3
- Requests in connection with past transactions. Because interpretative opinions and no-action letters help plan courses of action, the commissioner need not respond to completed transactions.
- Requests in connection with pending or ongoing litigation. The commissioner will not comment on issues that are being litigated.
- Requests regarding plain reading of statutes or well-settled areas of the law. In the interests of administrative economy and restraint, the commissioner will not answer two types of questions: (1) those that can be easily answered with a plain reading of the statute or rule and (2) those dealing with well-settled areas of the securities laws.
“How do I request a no-action letter or an interpretative opinion?”
Administrative rules describe how you must request a no-action letter or an interpretative opinion. You must send a written letter describing your request (see “What must my letter contain?”) to the following address:
Secretary of State
Attention: [No-Action Determination or Interpretative Opinion]
600 W. Main Street
P.O. Box 1276
Jefferson City, MO 65012
“What must my letter contain?”
In your letter, you must specify the activity or transaction that is the subject of the request and who is engaging in that activity or transaction. Without this information, the Missouri Securities Act of 2003 prohibits the commissioner from answering your question. 6
Your letter must contain a thorough description of the facts or the transaction. You will get a quicker response if you detail as much as the commissioner needs to know. It will slow the response time if the commissioner’s staff must contact you to determine further facts.
Your letter must also contain a concise statement of a single issue presented for no-action relief or interpretation. Presenting more than one question runs the risk that the commissioner will unnecessarily opine on issues other than the ultimate question. Although the commissioner will not reject your request if it includes more than one issue, the commissioner’s response may be delayed. This is because the commissioner’s staff will have to contact you to isolate the single issue to which the commissioner should respond.
Your letter should also contain an objective legal analysis of the question with appropriate citations and support. Although your letter can advocate for your position, a thorough analysis examining both sides of the question will reduce the amount of research the commissioner and his staff must do. This, in turn, will hasten the commissioner’s response. Conversely, a letter with no legal analysis or no citations will increase the needed research and, thus, turnaround time.
Your letter must also include copies of any documents necessary for the commissioner to make his determination. For instance, if you are seeking a no-action determination regarding a proposed transaction, you would want to include copies of the offering documents or advertising. If your letter does not include these documents, the commissioner’s staff will contact you to complete the file. As noted, this increases the response time.
“What will I receive?”
When you request a no-action letter or interpretative opinion, you will receive a written notice from the commissioner. 7 The content of that letter will depend upon whether you requested a no-action letter or an interpretative opinion.
If you requested a no-action letter, then you will receive a letter in which the commissioner states whether he would recommend or direct that the Securities Division take action based upon the facts in your letter. Because that determination will be based upon the facts in your letter, you will also receive a copy of your letter (the commissioner will incorporate your letter by reference).
If you requested an interpretative opinion, then you will receive the commissioner’s legal analysis of the law in question. Typically, this letter will conclude with a concise statement regarding the commissioner’s opinion.
“What about any communications I have with the Securities Division staff?”
After you send in a request for a no-action or interpretative opinion, the commissioner’s staff may have reason to contact you. In order to assist the commissioner, they may have further questions or requests for other documents.
You should not think that any discussions with the staff represent statements or conclusions by the commissioner. “Informal discussions with the commissioner or members of the Staff of the Securities Division shall not be taken to signify any determination or approval concerning the matters discussed.” 8 The statements or communications from the Securities Division staff are not binding and are of no legal consequence.
6. See § 409.6-605(d), RSMo (allowing the commissioner to issue interpretative or no-action determinations “against a specified person for engaging in a specified act, practice, or course of business”) (emphasis added).