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THE FUTURE OF CAPITAL FORMATION

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

MAY 10, 2011

Serial No. 112–46

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on May 10, 2011 ............................................................................... 1

Statement of:

Silbert, Barry E., CEO, Secondmarket; Eric Koester, co-founder, Zaarly,

Inc.; Richard W. Rahn, senior fellow, the Cato Institute; Jonathan

R. Macey, Sam Harris professor of corporate law, Securities and Corporate Finance, Yale Law School, professor, Yale School of Management; and Roel C. Campos, esq., Locke Lord Bissell & Liddell, former

Commissioner of the Securities Exchange Commission ............................ 43

Campos, Roel C. ......................................................................................... 100

Koester, Eric .............................................................................................. 61

Macey, Jonathan R. ................................................................................... 81

Rahn, Richard W. ...................................................................................... 72

Silbert, Barry E. ........................................................................................ 43

Schapiro, Mary, chairman, U.S. Securities and Exchange Commission;

and Meredith Cross, Director of the Division of Corporation Finance,

U.S. Securities and Exchange Committee .................................................. 4

Cross, Meredith ......................................................................................... 19

Schapiro, Mary .......................................................................................... 4

Letters, statements, etc., submitted for the record by:

Campos, Roel C., esq., Locke Lord Bissell & Liddell, former Commissioner

of the Securities Exchange Commission, prepared statement of .............. 102

Koester, Eric, co-founder, Zaarly, Inc., prepared statement of ..................... 63

Macey, Jonathan R., Sam Harris professor of corporate law, Securities

and Corporate Finance, Yale Law School, professor, Yale School of

Management, prepared statement of .......................................................... 83

Rahn, Richard W., senior fellow, the Cato Institute, prepared statement

of ..................................................................................................................... 74

Schapiro, Mary, chairman, U.S. Securities and Exchange Commission,

prepared statement of ................................................................................... 7

Silbert, Barry E., CEO, Secondmarket, prepared statement of .................... 46

(1)

THE FUTURE OF CAPITAL FORMATION

TUESDAY, MAY 10, 2011

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 12:30 p.m., in room

2154, Rayburn House Office Building, Hon. Darrell E. Issa (chairman of the committee) presiding.

Present: Representatives Issa, McHenry, Lankford, Amash,

Buerkle, Gosar, Meehan, Gowdy, Farenthold, Cummings, Towns,

Maloney, Norton, Tierney, Cooper, and Connolly.

Staff present: Robert Borden, general counsel; Will L. Boyington

and Drew Colliatie, staff assistants; Molly Boyl, parliamentarian;

Lawrence J. Brady, staff director; Katelyn E. Christ, research analyst; Benjamin Stroud Cole, policy advisor and investigative analyst; John Cuaderes, deputy staff director; Adan P. Fromm, director

of Member liaison and floor operations; Linda Good, chief clerk;

Peter Haller, senior counsel; Frederick Hill, director of communications and senior policy advisor; Christopher Hixon, deputy chief

counsel, oversight; Hudson T. Hollister, counsel; Ryan Little, manager of floor operations; Justin LoFranco, press assistant; Mark D.

Marian, senior professional staff member; Laura L. Rush, deputy

chief clerk; Ashley Etienne, minority director of communications;

Jennifer Hoffman, minority press secretary; Carla Hultberg, minority chief clerk; Lucinda Lessley, minority policy director; Brian

Quinn, minority counsel; Steven Rangel, minority senior counsel;

Dave Rapallo, minority staff director; and Susanne Grooms

Sachsman, minority chief counsel.

Chairman ISSA. I want to make a couple of brief announcements.

First of all, it will not be a breach of decorum with the current temperature if people remove their jackets. I apologize, but when they

turn from air conditioning to heat, they do it with a vengeance in

this building.

I understand the chairman has to leave at 1:30 so we will be respectful of time. As Members show up, they may or may not get

to ask questions.

Madam Chair, I understand you are the only one that is going

to be making an opening statement, correct? And that Ms. Cross,

I understand we get to keep you for all of the followup questions.

Very good.

I am going to waive the normal mission statement and be very

brief in my opening statement.

Today’s hearing is in fact about the issue of capital formation. As

the chart behind me indicates, the historic public market, the marVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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ket we think of as the Nasdaq, the New York Stock Exchange, and

so on, is no longer producing the number of initial public offerings

as it once did. Since 1991, we have seen that avenue for capital formation reduced. Doesn’t mean that there aren’t plenty of companies who still suit that.

But today we are asking the question of can America continue

to build companies of the future if there is not an additional access

to capital for those companies of the future? Particularly, we will

be asking the question of whether or not a 499 limit of investors

on private companies is appropriate or whether there can be administrative or legislative fixes to that.

As a member of a board of a small public company, I am well

aware of the cost and difficulties of being public. We are not the

Financial Oversight Committee, and we will not assume that we

can micromanage what happens in Sarbanes-Oxley, Dodd-Frank, or

any of the other legislation that is well known here on the Hill.

Rather, we are thrilled to be in the presence of a distinguished

first and second panel that are going to help us understand, in the

broad sense of the word, where America is going and what the

great stories of tomorrow are.

Many people have looked at the Facebook situation and said, Ha,

that is the impetus for this. Nothing could be further from the

truth, although it is a high-profile company who only recently went

past their 500 investors, it is very clear that is not the model for

which we have a concern.

We on the committee are concerned for the small- and mediumsized companies, for companies in which a family or an extended

family wish to make sensible plans for the future, allowing diversification and at the same time opportunity for investors.

Additionally, we would like to understand better from Chairman

Schapiro what the real future of a qualified investor is versus the

investment public as a whole. As all of us know, the SEC has a

dual mandate. One of them, of course, is notably the protection of

the public. The other is, in fact, what this is about here today,

which is capital formation. We hope to come into this and go out

of it with the idea that America has an obligation and Congress

has an obligation to participate in capital formation that leads to

greater employment. And with 9 percent unemployment still lingering with us for over 2 years on and off now, we understand and

realize that this is but a small element of it, but it is an important

element.

With that, I yield to the ranking member.

Mr. CUMMINGS. Thank you very much, Mr. Chairman. Today’s

hearing will examine ways to help small and emerging businesses

gain access to additional capital, help them grow and hopefully succeed.

This issue is critical to the continuing economic recovery and the

future success of our great Nation. If U.S. firms cannot grow, they

simply cannot create jobs. Our examination must begin with the

simple concept that permits our markets to function effectively,

and that is investor confidence. If people or institutions do not have

confidence that our market is safe and sound, they simply will not

invest. And this lack of confidence will impede the ability of growing companies to access much-needed capital.

3

This was a key lesson of the 1929 market crash. As a result,

Congress created the Securities and Exchange Commission to enforce security laws in a way that enabled firms to access capital

while providing investors with sufficient information to have a

basic level of confidence in the system.

We learned this lesson again in 2008 as inadequate financial

oversight led to recklessness, fraud, and unscrupulous behavior resulting in the greatest financial crisis since the Great Depression.

We must never forget that.

The SEC has now charged 66 entities and individuals with securities violations leading to or arising from the recent financial crisis. For example, Goldman Sachs paid a record penalty of $550 million after the SEC charged the firm with, ‘‘defrauding investors, defrauding investors by misstating and omitting key facts about a financial product tied to subprime mortgages.’’ Charles Schwab paid $118 million to settle charges regarding

misleading statements the firm made to market a mutual fund ‘‘invested in mortgage-backed and other risky securities.’’ As a result,

Congress passed the Dodd-Frank Act last year, making critical

changes to the U.S. financial regulatory system to enhance accountability for banks and Wall Street firms that caused the financial crisis.

Some people now feel we should repeal these protections in their

entirety, as if the crisis that crippled our great Nation and our

economy in 2008 never happened. In my opinion, that is exactly the

wrong approach and, as a matter of fact, it is shocking to the conscience.

We will not restore lost confidence by removing protections that

safeguard investors. Instead, we must find an effective balance—

and I thank Commissioner Schapiro for constantly talking about

balance—one that ensures investors that they will be protected in

the future while carefully examining ways to optimize growth. I

fully support helping U.S. firms access additional capital, but I also

believe that this must be done without sacrificing critical protections that assure our fellow citizens that our markets are fundamentally sound.

It is important to remember that the investors we are trying to

protect are everyday Americans. They are our constituents. In fact,

according to an April survey by Gallup, a majority of Americans,

54 percent, reported owning some form of stock.

I am encouraged by the fact that since she has begun her tenure,

Chairman Shapiro has taken an active role in guiding her staff to

conduct comprehensive reviews over a range of issues concerning

capital market formations, including many of the issues that we

will discuss here today.

The 25-page letter she sent to the committee on April 6, 2011,

demonstrates that she is serious about exploring innovative and

new ideas to assist market participants while implementing robust

consumer protections that will help investors retain confidence in

our markets.

In that letter, she said the following: Cost effective access to capital for companies of all sizes plays a critical role in our national

economy. Regardless of the form or size of the offering, companies

seeking access to capital in U.S. markets should not be overburVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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dened by unnecessary or superfluous regulations. At the same

time, all offerings must, of course, provide the necessary information and protections to give investors the confidence they need to

invest in our markets.

Striking the right balance between facilitating access to capital

by companies and protecting investors in our rules and orders is

a critical goal of the SEC.

And with that, I look forward to hearing from the chairlady and

our other panelists.

And thank you, Mr. Chairman. I yield back.

Chairman ISSA. All Members will have 7 days to submit opening

statements and extraneous material for the record.

We now go to our distinguished panel.

The Honorable Mary Schapiro is chairman of the Securities and

Exchange Commission and Ms. Meredith Cross is the director of

the SEC’s division of corporate finance.

Pursuant to the rules of the committee, I would ask that you

both rise to take the oath.

Would the record indicate both witnesses answered in the affirmative.

Again, Chairman Shapiro, we appreciate you making time for

this hearing and you’re recognized.

STATEMENTS OF MARY SCHAPIRO, CHAIRMAN, U.S. SECURITIES AND EXCHANGE COMMISSION; AND MEREDITH CROSS,

DIRECTOR OF THE DIVISION OF CORPORATION FINANCE,

U.S. SECURITIES AND EXCHANGE COMMITTEE

STATEMENT OF MARY SCHAPIRO

Ms. SCHAPIRO. Thank you. Chairman Issa, Ranking Member

Cummings, and members of the committee. Thank you for inviting

me to testify today on the topic of capital formations. As the chairman has said, I am joined by Meredith Cross, director of the SEC’s

Division of Corporation Finance, and I regret that a change in the

committee schedule for this hearing means that I do have to leave

at 1:30 for a longstanding prior engagement. However, Ms. Cross

will stay to address any questions the committee might have.

Facilitating capital formation, protecting investors, and maintaining fair, orderly, and efficient markets is the mission of the

SEC. Cost-effective access to capital for companies of all sizes plays

a critical role in our national economy, and companies seeking access to capital should not be overburdened by unnecessary or superfluous regulations.

At the same time, while we have an important responsibility to

facilitate growing companies’ access to America’s investment capital, we must balance that responsibility with our obligation to protect investors in our markets.

Too often, investors are the targets of fraudulent schemes disguised as investment opportunities. In fiscal year 2010, offering

frauds—cases where promoters, issuers, or others defraud investors

in the offer of securities—comprised 22 percent of the Commission’s

cases. Investor confidence and the fairness and honesty of our markets is critical to the formation of capital, and the protections proVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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vided by the securities laws are critical to large and small company

investors alike.

Over the years, the SEC has taken significant steps consistent

with investor protection to facilitate capital raising by companies

of all sizes and to reduce burdens on companies in making offerings. From the introduction of shelf registration in the 1980’s to the

reduction of the eligibility threshold for shelf in the early 1990’s to

modernizing communications and the offering process in 2005, the

SEC regularly considers and, when appropriate, implements

changes to our rules to reduce regulatory burdens while maintaining the important investor protections provided under the Securities Act.

The SEC also has undertaken errors specifically designed to facilitate capital formation for smaller companies by simplifying the

regulatory environment for them. Most recently in 2007, the SEC

adopted a variety of rules impacting small business capital raising

and private offerings, a number of which were based on the recommendations of the SEC’s then-serving Advisory Committee on

Smaller Public Companies.

Among the rules adopted by the Commission were those that

simplified the disclosure and reporting requirements for smaller

companies and expanded the ability to use less burdensome scale

disclosure to more companies, allowed a company to grant stock options to more than 500 employees without triggering the requirements to become a reporting company, and liberalized the eligibility requirements for certain short-form registration statements

and some shelf registration to allow eligible smaller public companies to benefit from greater flexibility and efficiency in accessing

the public securities market.

Recently I instructed our staff to take a fresh look at our offering

rules and to develop ideas for the Commission to consider that

would reduce the regulatory burdens on small business capital formation in a manner consistent with investor protection. Areas of

focus for the staff will include the restrictions on communications

in initial public offerings; whether the general solicitation ban

should be revisited in light of current technologies; capital raising

trends and our mandates to protect investors and facilitate capital

formation; the number of shareholders that trigger public reporting, including questions surrounding the use of special-purpose vehicles that hold securities of a private company for groups of investors; and the regulatory questions posed by new capital raising

strategies.

In conducting this review, we will solicit input and data from

multiple sources including small businesses, investor groups, and

the public at large. The review will include evaluating recommendations of our annual SEC Government Business Forum on

Small Business Capital Formation and as well as suggestions we

receive and have already received through an e-mail box we recently created on our Web site.

In addition, I expect our efforts to benefit from the input of the

new Advisory Committee on Small and Emerging Companies that

the Commission is in the process of forming, which will provide a

formal mechanism for the Commission to receive advice and recommendations about regulatory programs that affect privately held

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businesses and small publicly traded companies. Any rule proposals that result from this, review will, of course be subject to a

public comment period in advance of any rule changes being adopted.

We look forward to working closely with Congress, the investing

public, and members of the business community as we explore the

possibilities and challenges in these areas and work to fulfill our

mandate to protect investors, maintain fair, orderly, and efficient

markets, and facilitate capital formation.

We would be happy to answer any questions the committee

might have. Thank you.

Mr. ISSA. Thank you.

[The prepared statement of Ms. Schapiro follows:]

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Chairman ISSA. I’ll begin by a round of questioning.

Madam Chair, the chart behind me, which indicates a peak in

the note of a pretty large dropoff to where 100, 150 of IPOs is considered a good year, does that indicate to you that the market for

large companies, those who are mostly over 200 million that are

doing IPOs, is in fact a market of the past; or is it a recognition

that it simply costs more to play in that market and those companies are choosing other alternatives?

Ms. SCHAPIRO. Mr. Chairman, I think the numbers reflect the

number of different factors that actually go into the decision the

companies have to make about doing an initial public offering. Certainly economic conditions are very prominent in that decisionmaking process. There are also issues about whether founders

want to give up their decisionmaking control that they exercise as

a private company, whether they want to have dilution of their

ownership interests. There is a potential disclosure of vital business information when you go public.

Chairman ISSA. I don’t want to interrupt you unfairly. But all of

those existed in this 1980’s and 1990’s, so the change can’t be those

factors. It could be consideration of those factors. But the real

change in small companies going public since the 1980’s seems to

be the cost of going public.

Ms. SCHAPIRO. I think costs of going public are certainly a factor.

As I started to say, and I would be happy to supplement the record

further, there are lots of factors I think that go into that decision

for public companies, and including some of our earlier IPOs up

there, I suspect foreign companies going public in the U.S. markets.

And one of the things we’ve seen, particularly in the last several

years is a real maturation of foreign markets that give those foreign-based companies a viable alternative to going public in the

United States, which I think is a perfectly rational decision for

them to make these markets that we are in now. Liquid have good

listing standards, have sophisticated shareholder bases that they

may not have had 10 and 20 years ago, as represented by that

chart.

The other thing I think that is important when companies, foreign companies make a decision about whether to access the U.S.

IPO market is that it’s much less expensive in terms of underwriter fees in Europe than it is in the United States. It’s about 4

percent gross spread in Europe, whereas it’s 7 percent in the

United States. So I think there are lots of factors.

Chairman ISSA. Isn’t it also true that you have U.S. companies

choosing to go public overseas in many cases, thus leaving a lot of

your oversight behind? It is not just companies that are truly based

overseas but also companies who want to be global, whose CEO is

living here, who decides that a foreign market in Canada or in Europe makes more sense for them to do.

Ms. CROSS. I think I can take this.

STATEMENT OF MEREDITH CROSS

Ms. CROSS. I think there are some companies in that situation,

but I think our data, which we are happy to supplement for the

20

record, doesn’t suggest there is a significant number of U.S. companies going offshore for their IPOs.

I think other factors that are relevant—certainly we understand

that costs are important, and we are committed to looking at those

costs. But I think that, for example, the alternative of a sale increased significantly in recent years and has more certainty. So if

people are trying to get out of their investment, the private equity

market became quite huge in the last decade and that also provided an alternative.

But this isn’t to suggest we don’t think the costs are important.

I just think there are—people have told us there are a number of

reasons why companies choose not to go public now.

Chairman ISSA. Let me take a slightly different line, and I know

we want to talk about small businesses and the 500 cap and so on.

Let me just ask a question.

When people want to float, if you will, public debt, senior debt,

and they go through a process of registering debt, it’s really a onetime event. You register the debt, it’s floated, it’s bought up. And

then after that, the company that borrows 150 million in senior

debt, in fact it views itself as separate from the debt that it repays.

To a great extent, don’t we have a disconnect in that a company

can say, Look, I’d like to take on investors. I am willing to tell

them this, but I’d like to be able to have the ability to run my company with those investors understanding at the time they bought

in will not be reported.

So to a certain extent, haven’t we lost that middle ground in the

public market? You’re either all public and you have several million dollars cost to go public and several million a year to be public,

or you are private and you find yourself not availing yourself to,

if you will, a broad range of investors.

Ms. SCHAPIRO. I guess I would ask Meredith if she wants to add

to this. But I think that is basically right. If you choose to become

a public company you need to follow the reporting and disclosure

requirements of the Federal securities laws. You’ve taken investors’

money. That is part of the bargain that you have struck with investors is that they’ll have the opportunity both for board members to

participate in a meaningful way, and that they will have access to

information on an ongoing basis that will allow them to make decisions about whether to continue to hold that stock or to sell it in

the market.

Chairman ISSA. And the reason I asked that question is since we

are not getting the IPOs here in the United States, people are

choosing not to go into that market. At least for institutional qualified investors, why in the world would we have a 499 cap on how

many of them can participate in a company? If you are a sophisticated investor, why couldn’t you choose to be involved in what

today is available to these leverage organizations and angel capital

and other investors who choose to buy a bigger piece rather than

one 500?

Ms. SCHAPIRO. Mr. Chairman, that is exactly what our review is

really looking at is whether a threshold of 499 or 500 is still appropriate, as well as a review of the threshold at which a company can

cease being a reporting company because of the change in the number of its shareholders. And we will, as you know, do a very rigVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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orous study and gather the kind of analysis and data that is necessary for us to analyze whether those thresholds are still appropriate given how markets are operating today.

Chairman ISSA. Thank you.

I recognize the ranking member.

Mr. CUMMINGS. Thank you very much.

Chairman Shapiro, I want to thank you for your responsiveness

to this committee. It has been extensive. I want to thank you and

your staff, and it’s been forthright, and I really do appreciate it,

and I think all of us appreciate it.

There has been a lot of discussion about rolling back the protections Congress put in place to safeguard investors in the public. We

hear that they are too burdensome, too costly and that they hurt

corporate profits. I’d like to return to the fundamental reason we

need these safeguards to begin with.

On January 25th there was an article in the Atlantic and it described in detail how executives from Bear Stearns took extreme

measures to defraud clients, cheating investors out of billions of

dollars through a corrupt ‘‘double dipping’’ scheme. Amazingly, the

article also reported that many of the same executives, those responsible for these abuses, are now in top positions at other firms.

Here is what the article said: ‘‘Former Bear Stearns mortgage executives who now run mortgage divisions of Goldman Sachs, Bank

of America, Allied Financial, have been accused of cheating and defrauding investors through the mortgage securities they created

and sold while at Bear.’’

Chairwoman Shapiro, how can this be? How can the same executives responsible, allegedly responsible for these abuses, now be

making millions of dollars running different companies?

Ms. SCHAPIRO. Congressman, as you know, we have a very aggressive enforcement division at the SEC that has under investigation many issues arising out of the financial crisis, and indeed we

brought about two dozen cases or so coming out of the financial crisis. You mentioned the Goldman Sachs case. But there are many

others that name both firms and individuals, officers, chief financial officers, and others, and we’ll continue to investigate those very

aggressively.

Wherever the facts and the laws will take us, we will go. And

if there are appropriate actions to be brought against particular individuals, we won’t hesitate to bring those cases.

Mr. CUMMINGS. The Atlantic article also said this. It said, ‘‘Last

week, a lawsuit filed in 2008 by mortgage insurer Amback Insurance Co. against Bear Stearns and JP Morgan was unsealed. The

lawsuit supporting e-mails going back as far as 2005 highlight

Bear traders telling their superiors they were selling investors like

Amback a ‘sack of shit.’ ’’

Chairman Shapiro, are you aware of those e-mails?

Ms. SCHAPIRO. I am not specifically aware of those e-mails, although I would imagine that our enforcement division is. And I

should add that it is not just the SEC that is stepping up here. It’s

the other financial regulators through the mortgage fraud task

force and through efforts in conjunction with the Department of

Justice and others to try to bring as many of these cases as we can.

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Mr. CUMMINGS. This is astonishing, and, if accurate, they indicate that some of the same executives knew exactly what they were

doing and simply didn’t care. As I understand it, Bear Stearns was

acquired by JP Morgan 3 years ago. On May 7, 2011, The Atlantic

reported that the SEC has now subpoenaed JP Morgan in connection with these allegations.

Chairman Shapiro, or perhaps you, Ms. Cross, without going into

any sensitive information, what can you tell us about these allegations, about your investigation, or about your concerns about these

abuses? And can you tell us what subpoenas—the subpoenas seek

from JP Morgan?

Ms. SCHAPIRO. Congressman, as a matter of policy and fairness,

we generally don’t comment on specific ongoing enforcement matters. I can see if there is more information we can provide for the

record that wouldn’t jeopardize any ongoing investigation, and if

that is possible, we’ll provide that.

[The information referred to follows:]

[NOTE.—The information referred to was not provided to the

committee.]

Mr. CUMMINGS. As an officer of the court, I understand.

I still think that this whole—you know, the reason why I raise

these issues is because we must never forget what we just went

through, are still going through. We must never forget our constituents who have suffered and continue to suffer, many of them having lost everything. And I just thank you again for the balance that

you seek to—the balance that you bring to the table in seeking to

address these issues.

With that, Mr. Chairman, I yield back.

Chairman ISSA. Thank the gentleman.

I recognize the member of the Financial Services Committee and

subcommittee chairman here, the gentleman from North Carolina,

Mr. McHenry.

Mr. MCHENRY. I thank you, Mr. Chairman. Ms. Schapiro, thank

you for your service to our government. We appreciate you being

back.

I do have a question. The SEC has a 499 shareholder cap. Can

you explain what that is?

Ms. SCHAPIRO. Yes, I’d be happy to. One of the ways in which

a company becomes a reporting company under the SEC’s reporting

regime—and there are five different ways—but one is if the company has total assets of more than $10 million and 500 record

shareholders, you become a reporting company and you have to file

an Exchange Act registration statement and then ongoing disclosure.

Mr. MCHENRY. Who are those investors limited to? What types

of investors? Accredited investors? Institutional investors and employees, right?

Ms. SCHAPIRO. It’s all investors. All investors in the company.

Mr. MCHENRY. No, no. Those that sought to, for instance, to invest in Facebook.

Ms. SCHAPIRO. Right.

Mr. MCHENRY. In order to be an accredited investor, you have

to have a million dollars net worth, right?

Ms. SCHAPIRO. Yes.

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Mr. MCHENRY. Or you have to be an institutional investor and an institutional investor is, what, $100 million in your fund; is that

correct? OK. Or employees of the company, right? Those are the

three classes of people that cap is—they can participate under that

cap, correct?

Ms. SCHAPIRO. There may be other investors as well.

Ms. CROSS. The 500 number includes anyone who is an investor.

There aren’t any, under the current rules, that are excluded from

the count. So employees count, accredited investors count, qualified

institutional buyers count. That is one of the questions we would

be looking at, whether we should count them.

Mr. MCHENRY. Right. So why 500?

Ms. SCHAPIRO. Five hundred was originally put in the statute in

the 1960’s, I think.

Mr. MCHENRY. My understanding was that this is not statute;

that the SEC wrote this, right? Is that not the case?

Ms. SCHAPIRO. Correct me if I go wrong. It is in the statute, although we do have the authority to write rules that would change

that. After the statute was passed, the Commission did write rules

that went to how those 500 counted. So, for example, there may actually be thousands of investors under that 500 threshold, because

we count holders of record. So if a broker-dealer is holding thousands and thousands, stock for thousands of institutional other customers, that counts as one because the broker dealer is the holder

of record?

Mr. MCHENRY. So, why? Why 500?

Ms. SCHAPIRO. The view I believe at the time——

Mr. MCHENRY. What’s the view now, because you have the authority to change it?

Ms. SCHAPIRO. It’s an issue, obviously, that we are looking at

very closely in our study. The view is that when a company has

sufficient following—perhaps 500 is a bit of an arbitrary number—

that those investors ought to have access to information on an ongoing basis about the company; that it has sufficient following that

there ought to be public disclosure.

Mr. MCHENRY. OK. Really, you are talking about protecting people that have a million dollars’ net worth, are institutional investors, or employees of the company. So the threshold’s here. So it

seems to me that the SEC policy is restricting access, because

small businesses are the ones that we are really talking about here

trying to access private capital with these investors. So it seems to

me that really the SEC policy is that you are trying to protect the

very people that this President says should pay more in taxes,

higher taxes, or these sophisticated investors at the expense of

small businesses accessing credit. Do you see it that way or not?

Ms. SCHAPIRO. Congressman, we see it as an absolutely legitimate thing for us to be inquiring about is whether that 500 number does continue to make sense; whether, as some have proposed,

qualified institutional investors ought to be excluded from it;

whether employees ought to be excluded from it. Although I will

say, they are no less deserving of the protections of the securities

laws than anybody else.

Mr. MCHENRY. My point is if you are a sophisticated institutional investor, I don’t think the SEC is going to protect you from

24

Bernie Madoff, which clearly the SEC didn’t do. And these folks are

very sophisticated and know the decisions they’re making. And for

heaven’s sakes, if you look at these substantial institutional players, to get better research and better information than the SEC or

the Federal Government does.

Ms. SCHAPIRO. This is exactly the issue we are looking at. And

of course they’re not all sophisticated institutions. I take your

point.

Mr. MCHENRY. You are talking about someone with a million

dollar net worth as an accredited investor. Not only do you have

to have a million dollar net worth, but then you have to be accredited, saying that you are sharp enough to do this stuff. It seems

to me—I am sort of dismayed that the SEC didn’t protect the

grandmothers that had their life’s savings taken from Bernie

Madoff, but are trying to protect these people with a million-dollar

net worth in the name of really starving small businesses from capital.

Ms. SCHAPIRO. Congressman, I would say we are receiving a wide

range of proposals in this area. We are absolutely committed to

looking at whether this threshold makes any sense; whether the

threshold numbers for firms to stop reporting once they’ve been reporting, even though they may have thousands of shareholders, is

are appropriate, too. And we intend to do a very thorough and rigorous analysis.

Mr. MCHENRY. Thank you. When do you think you’ll have a decision?

Ms. SCHAPIRO. Well, we’ve got multiple work streams, as you can

see from my testimony. This is the one work stream that is going

to require economic data and analysis because we need to understand the characteristics of these companies and how they hold—

their shareholders hold, whether in record name or in the name of

the beneficial owner. And the staff has already begun to develop

the work plan for this particular work stream. And I’d love to come

back to you with a more concrete timeframe, but I can assure you

that it is front and center on our agenda.

Chairman ISSA. The gentlelady from New York, Mrs. Maloney.

Mrs. MALONEY. I thank the chairman for yielding. Welcome,

Chairwoman Shapiro.

We have heard repeatedly that the IPO market in the United

States has declined significantly in recent years and I would like

to examine this claim.

Experts from the SEC and the Federal Reserve analyzed a survey of 18,000 IPOs from 90 different countries between 1995 and

2007. And they issued a paper entitled Going Public Abroad. And

the paper makes the conclusion and it says, ‘‘The U.S. domestic

market has, by a wide margin, the largest proceeds of any of the

markets worldwide.’’ For example, the paper finds that the U.K.

Saw a decline in the average proceeds generated by domestic and

global IPOs during this period, but the United States did not. And

the paper says that we did not in the United States see a significant change. And basically the paper says that we need to look beyond the number of IPOs and examine the question of the amount

of revenue generated.

25

It looked at IPOs, 57 deals in the United States that raised over

$27 billion in the fourth quarter of 2010, and further says that the

United States achieved the highest IPO revenue total in the fourth

quarter of 2010 since the fourth quarter of 1999.

So my question to you is basically on the fact that the article

says, when excluding the 17 billion Visa IPO in 2008. Which was

the largest, as you know, IPO in our country, the first quarter 2011

generated the highest first quarter proceeds since 2000.

So Chairman Shapiro, these indicators suggest that the U.S.

IPOs are in their strongest in years. And I’d like the unanimous

consent to put these papers in the record. And I’d like to ask you,

Chairman Shapiro, whether or not you agree. Is this correct?

Chairman ISSA. Without objection, so ordered.

Ms. SCHAPIRO. I think there is no question that the IPO market

is rebounding and we can see the numbers starting to change. And

as you point out, the fourth quarter of 2010 we saw 60 IPOs, and

this year, last year overall, we saw something like 153 percent increase. We are not back to historic levels, and there are lots of reasons for that. But we do have fewer small IPOs. We still have

many very large IPOs, I think, that contribute to the number of

many billions of dollars raised in the IPO market.

But I don’t think there is any question but that we are starting

to see this market come back, and you need only pick up the newspaper virtually every day now to see at least anecdotally evidence

of that. But again our numbers would also bear out that this market is rebounding.

Mrs. MALONEY. And certainly we lead the world in volume.

Ms. SCHAPIRO. In dollars raised.

Mrs. MALONEY. I’d like to ask about the IPOs in the global marketplace.

And according to Ernst and Young that 60 percent of the global

volume of IPOs in 2010 originated in so-called emerging markets.

And I’d like to particularly look at activity in China. And China

made the largest IPO ever in the financial sector with a 22 billion

offering. But it was of a State-owned commercial bank, the Agricultural Bank of China, and Ernst and Young reported in their report

that China’s IPO and infrastructure and clean tech was boosted

dramatically by government stimulus funding. You obviously have

a huge IPO if the government is funding it.

And it goes on to point out that it far outweighed U.S. stimulus and that China spent over $586 billion in infrastructure and transportation projects and $735 billion in renewable energy. But as we

know in our $778 billion stimulus package, it only had $48 billion

in transportation and $16 billion in—$21 billion in renewable energy.

So my question to you, Madam Chairman, is how has the SEC

analyzed the extent to which the IPO growth in China relates to

extensive State spending?

Ms. SCHAPIRO. Congresswoman, we have not specifically looked

at the issue of the extent to which governmental spending is influencing foreign IPO markets. I will say that generally we are seeing

much more mature markets abroad than we have historically, making them more hospitable and more credible places for companies

to do IPOs that might have years ago come to the U.S. market.

26

Mrs. MALONEY. The Renaissance Capital Research wrote in an

article entitled ‘‘U.S. IPOs on Top of Game,’’ and this article finds

there’s been a lack of U.S.-listed Chinese IPOs because U.S. investors have balked at the poor quality of IPOs in China.

Chairman ISSA. The gentlelady’s time has expired.

Mrs. MALONEY. Can I just throw one little question to her?

Chairman ISSA. If you can be very brief.

Mrs. MALONEY. Does the SEC find that foreign markets may not

impose the same high standards imposed on U.S. firms issuing

IPOs domestically?

Ms. SCHAPIRO. One of the interesting phenomenons—and I know

Mr. McHenry is very interested in this as well—is this phenomenon of companies that are not necessarily incorporated in

China but have a large part of their operations in China actually

doing reverse mergers as opposed to IPOs, and coming into the

U.S. market to list on U.S. exchanges. And there are a number of

issues there about which we are quite concerned and working

through with the Chinese regulators.

Chairman ISSA. The gentleman from South Carolina, Mr. Gowdy.

Mr. GOWDY. Thank you, Mr. Chairman.

Welcome, Madam Chairwoman. Is the general solicitation ban

constitutional, and can you cite me to specific published opinions

that support your opinion?

Ms. SCHAPIRO. Congressman, I think that you raise a very good

question with respect to the general solicitation ban, and the chairman has raised that as well in some of his correspondence. And we

absolutely recognize that the general solicitation ban does limit

speech to some extent, so it’s one of the issues we are looking at

in our study. And a First Amendment analysis will be part of that.

I think the issue for us is whether the general solicitation ban

passes First Amendment amendment muster, but in addition,

whether it’s protection of investors is appropriately balanced with

the needs for companies to effectively communicate in order to

raise capital. And so that is one of the issues that we will be looking at closely.

Mr. GOWDY. Well, given the fact that it implicates a fundamental

right, you have the strictest level of constitutional scrutiny and it

has to be as narrowly drawn as it possibly can be. If you conclude

in your own independent analysis that it is not constitutional, will

you do what there is some precedent in the executive branch for

doing, which is not enforcing laws that you don’t think are constitutional? Will you abandon the ban if you conclude that it

doesn’t pass constitutional muster?

Ms. SCHAPIRO. I believe I obviously can’t predict where we will

come out on this issue, but we would—rather than not enforce a

law that is not on the books, we would seek to change it.

Mr. GOWDY. There is some precedent for not enforcing laws that

are not on the books. I think you would agree with me.

Ms. SCHAPIRO. There is precedent. But I have a sworn duty to

uphold the law and the Constitution, and so I would be a bit uncomfortable with just ignoring a provision of the law. But that said,

this is an area we will be looking at very carefully.

Mr. GOWDY. With respect to 2008, do you know or can you tell

me the number of defendants who received active prison senVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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tences—not fines, not promises not to do it again—but active prison

sentences?

Ms. SCHAPIRO. I really can’t speak—we don’t have criminal authority and we don’t prosecute cases in the criminal justice system.

I can tell you that for the Securities and Exchange Commission, we

brought more than 670 cases with disgorgement of ill-gotten gains

and penalties that were ordered of over a billion dollars, and a billion dollars returned to investors who had been harmed by securities fraud.

Mr. GOWDY. And those are very big, laudable numbers. Of those

cases, how many did you refer for criminal prosecution to a respective U.S. attorney’s office?

Ms. SCHAPIRO. I would guess a healthy number, and I’d be happy

to provide that exact number to you.

[The information referred to follows:]

[NOTE.—The information referred to was not provided to the

committee.]

Mr. GOWDY. I would be interested because I am asked quite often

in South Carolina why nobody goes to jail if you are rich, and all

you do is steal money and you don’t go to jail. I am very interested.

And I am also interested in whether or not the SEC would have

appeared and asked for an enhanced sentence or an upward departure given the erosion of public trust that was manifested in 2008.

Ms. SCHAPIRO. Congressman, I think if you look at the sanctions

that the SEC has leveled over the past several years for violations,

again civil violations of the Federal securities laws, you will see

that they have ramped up rather significantly. I gave you the number of 2008, but in 2010 our disgorgement of ill-gotten gains and

penalties reached $2.85 billion and we returned $2 billion to

harmed investors.

Mr. GOWDY. I am not giving short shrift to your disgorgement.

That is wonderful. But you can criminally prosecute and disgorge

someone of their ill-gotten gains at the same time. And nothing

gets people’s attention quite like an active sentence.

Ms. SCHAPIRO. There is no question about that. And we make

many referrals to the Justice Department. And we bring many

cases jointly with local U.S. attorneys and district attorneys around

the country and try to interest them in bringing more securities

fraud cases whenever we can.

Mr. GOWDY. Ma’am, would you be gracious enough to get me—

obviously, I don’t want pending investigations, but cases that are

concluded that were referred to various U.S. attorneys offices and

what the outcome was?

Ms. SCHAPIRO. I’d be happy to.

[The information referred to follows:]

[NOTE.—The information referred to was not provided to the

committee.]

Chairman ISSA. Will the gentleman yield?

Mr. GOWDY. Yes, sir.

Chairman ISSA. Madam Chair, just one quick question. I know

you can’t always answer hypotheticals. But as you’re aware, we

allow, and have for a decade or more allowed prescription drugs of

all classes, but we will just take, for example, sleeping aids that

28

are prescription-only to be advertised with a basically a ‘‘must see

a doctor’’ to get the appropriate advice.

In a sense, as Mr. Gowdy said, if there is an inherent bias toward free speech, isn’t it most likely that you’re going to end up

looking at that model and saying, Wait a second. If we limit the

purchase of these companies to qualified investors, other, you

know, institutions and so on, if we are limiting who can buy, if any

advertising were to explain that you cannot buy it unless you fit

in this category, what would be the harm any more in a general

solicitation than there is in making people aware about a prescription drug, knowing that they must go to a doctor before they can

have it prescribed?

Ms. SCHAPIRO. I think you raise exactly the right issue. I will say

there is a concern that the general solicitation ban is designed to

make it more difficult for those who would defraud others by casting a very wide net even in the private placement market and have

an easier way to defraud people because of the general solicitation,

the general advertisement, the way to bring more people into a

fraudulent scheme. That said, as you know, we are going to look

at this very carefully.

Chairman ISSA. I recognize the gentleman from New York, Mr.

Towns, for 5 minutes.

Mr. TOWNS. Thank you very much. Thank you and the ranking

member for holding this hearing and let me thank you, Chairman

Shapiro, for the outstanding job that you’re doing.

In your written statement, you indicated that 22 percent of the

SEC cases in fiscal year 2010 were offering fraud. Chairman Shapiro, can you give us an example of an offering fraud?

Ms. SCHAPIRO. I would be happy to. And I will say that every

Thursday, the Commission meets in a closed session to consider a

dozen or more enforcement cases. And so it’s very much on my

mind as we go through this process to ensure that we don’t lose

sight of—even though I think there’s flexibility, there are things we

need to look at, there are maybe things that we can do quite differently—we do not lose sight of the fact that there are investors

who need the protections provided by the Federal securities laws.

But what we see are offerings by promoters or others of stock in

a company where the disclosure has been false or misleading, the

information has been manufactured, where there are unregistered

offerings and they’re sold to people who are not accredited investors or who are appropriately qualified to buy that particular offering.

Ms. CROSS. Another type we see significant numbers are affinity

frauds where they target particular categories of people like the elderly. So you see a broad range. It is not the kinds of companies

that we all think of as appropriately using our exemptions, but

they drive through those exemptions and go after people who are

not able to fend for themselves.

One of the things that worries me a great deal as we look at the

question of loosening the ban, which I think is a very important

thing to consider, is how we then make sure that the people who

buy really are the accredited investors who don’t need the protections, because they do target those people. The fraudsters do target

those people.

29

Mr. TOWNS. If they go in court, what is the effect of these frauds

on investments and the market if they go in court?

Ms. SCHAPIRO. The frauds can be devastating to investors, and

that is true really of any kind of securities fraud, that people have

been convinced in many of these schemes to invest their life savings and are left with nothing at the end of the process.

Mr. TOWNS. Chairman Shapiro, what are some of the examples

of some of the things that the SEC has done to facilitate communications connected with public offerings?

Ms. SCHAPIRO. Congressman, over the years, the SEC has engaged in a number of efforts to make it increasingly possible for

companies to communicate during the quiet period, which is when

they are generally not communicating. For example, we’ve created

a research report safe harbor to encourage the publication of research reports during the quiet period. We allow free-riding

prospectuses which permit offers outside the statutory prospective.

We allow the media to publish stories about companies or their registered offerings, so long as the media is unpaid or not affiliated

with the issuer. We have done a number of offerings related communication safe harbors, again, that allow issuers to communicate

more details about transactions to potential investors during the

quiet period.

So we’ve taken a number of steps, primarily starting in 2005, to

try to relax some of the restrictions on issuers during the quiet period.

Mr. TOWNS. Thank you. Do you give—do you view the general solicitation ban as an impediment for capital raising for small businesses?

Ms. SCHAPIRO. We have heard from some small businesses that

the general solicitation ban makes it harder for them to reach investors and to raise capital. That is one of the things that we will

be looking at as we do our study of the general solicitation ban. We

want to understand the extent to which it is an impediment or an

unnecessary hurdle to capital formation.

Mr. TOWNS. Thank you very much.

Mr. CUMMINGS. Will the gentleman yield?

Mr. TOWNS. I’d be delighted to yield to the ranking member.

Mr. CUMMINGS. Just following up on what you just said. When

you go into trying to figure that out, whether it’s harming and

folks—I mean, what kind of factors would you likely be looking at?

I am not trying to get into your head for you to tell us everything

you’re going to do. What kinds of things will you be looking at to

come up with a reasonable answer to that?

Ms. SCHAPIRO. I think with respect to that point in particular,

we will probably do interviews with businesses that are pre-IPO

businesses or their advisers. We’ll also ask investors and the general public. We might put out a concept release and seek information and detail that way, and hopefully we will use our new Advisory Committee on Small Business Activities.

We have multiple areas we want to explore here. And there will

be different approaches for each one. For example, with respect to

the 500 shareholder threshold, there we want data and analysis of

the characteristics of these companies—which will be hard to get,

because they’re private companies—and understand how their

30

stock, how their holders hold their securities, whether they hold

them in street name or in direct name or so forth.

So for each of the work streams that we are going to be exploring, we’ve started to lay out the data and the information we think

will be most useful for us in trying to strike that appropriate balance.

Chairman ISSA. The gentleman from Arizona, Mr. Gosar.

Mr. GOSAR. Thank you, Mr. Chairman.

Let me ask you a question. How many regulations are there out

there, that a small company that wants to go public, that they have

to apply to? How many apply?

Ms. CROSS. I can try with that. For a company that is going to

conduct an IPO, there is a registration form, form S–1, that is the

main place they have to look. And then there is a series of regulations that govern what you’re allowed to do in the way of communications in the offering. So there’s probably, I would say, in the

SEC’s books probably 50 rules, something around like that. We

could certainly supplement for the record.

It’s a pretty tried and true path. So for the companies that go

through an IPO, the advisers to them—I used to do this before I

came to work at the SEC. There is a pretty clear path. There is

a handbook that people hand out to their companies as they’re

thinking about going public. So it’s not as daunting as you might

think.

Mr. GOSAR. So you would say it’s adequate if there’s not too

many, not too few?

Ms. CROSS. I think that the balance is manageable. I think there

are definitely a lot of rules. But the goal here is to make sure that

as companies are accessing the public markets for money, that

they—that investors are protected enough so that they feel confident going in and investing.

Mr. GOSAR. And are they nimble with the times?

Ms. CROSS. I think that we can certainly think about that. We

revised the offering rules very significantly in 2005. It was called

securities offering reform and it was a huge overhaul. It’s what, for

the first time, let companies have free writing prospectuses, let

them keep talking during quiet periods, let them have electronic

road shows on line. So it was a pretty big change. And I think it

has really helped. That doesn’t mean we can’t do more to help. So

we always are looking at our rules to see whether we’re doing what

we can to facilitate capital formation consistent with investor protection.

Mr. GOSAR. So when you are looking at fraud, going back to Mr.

Gowdy here, being a dentist and bringing a private sector aspect

and looking at the regulations of the State, when there’s an IPO

that’s foreign-based versus a U.S. predominately based, do you see

a problem or predilection within those groups of where you have

to have more enforcement?

Ms. CROSS. I’m sorry, sir.

Mr. GOSAR. Taking an IPO that is foreign-based predominately

versus an IPO that is U.S. based predominately, do you see much

more enforcement issues from one of those segments?

Ms. SCHAPIRO. I guess I would say that I think it depends on

what markets you’re looking at. There’s quite a range of requireVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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ments around the world with respect to the process of accessing the

public markets. I mean there’s no question but that the SEC in the

United States has one of the best developed enforcement programs

and polices the markets—we think there’s always more to do—but

pretty effectively. But I think other markets now are stepping up

and doing very much the same thing because what they understand is that to be a credible location for an IPO, and for people

to feel comfortable investing in new companies, there has to be a

credible enforcement regime around that so that fraud is stopped

and people can have confidence in the integrity of the financial

statements and the disclosures that the companies are making. So

I actually think there’s kind of a rising tide around the world in

this regard.

Mr. GOSAR. I’m worried more about right here in the United

States. Do you see more a problem with IPOs that are predominately foreign based or U.S. based?

Ms. SCHAPIRO. I’m sorry, I misunderstood your question but

clearly we’ve had some issues recently and you, I’m sure, read

about them in the paper with respect to reverse mergers of companies whose primary operations are in China, although they may

not be registered and generally they aren’t registered in China and

they aren’t subject to the jurisdiction of the Chinese SEC, and our

ability to deal with the disclosure shortcomings of some of those

companies. So we have had a very active program at the SEC, including suspending—revoking the registrations of eight Chinese

companies in the last month or so and suspending the trading in

just the last couple of weeks of three more of those.

I had the opportunity yesterday to meet with the chairman of the

China Securities Regulatory Commission and talk about how we

can establish a framework for our enforcement and examination

staff to have better access to information about these companies

who are not incorporated in China but whose primary operations

are in China and whose auditors are in China, so we can understand the quality and the truthfulness of their disclosures.

Mr. GOSAR. One more real quick question. Is there one part of

the marketplace for these particular investments? I’m looking at

medical devices that are having some problems in which there are

public offerings. Do you see any recourse or any aspect so that

you’re looking at one segment of the population of investors?

Ms. SCHAPIRO. It’s been interesting to me over the years to see

that we often have fraud in whatever industry is hottest at the moment. So a number of our actions with respect to these companies

with operations in China have been in the energy space, but they

can be in whatever they think investors will be most taken with

at that particular moment.

Mr. GOSAR. Thank you.

Chairman ISSA. I thank the gentleman and if the chairwoman

can allow a couple of minutes for the gentlelady from the District

of Columbia, who has been waiting here patiently, you’re recognized for up to 5 minutes based on her time.

Ms. NORTON. Thank you very much, Mr. Chairman. I thank you

for your indulgence and welcome Chairwoman Schapiro. You have

a very tough, you always have a tough job particularly after the extraordinary crash after 2008. You had to somehow encourage conVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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tinued investment without getting us back into the terrible hole we

were trying to get out of. Now, you can have an ideological notion

of cause and effect that says the government caused, government

regulation, for example, caused this or its opposite, that the failure

of regulation caused this. But whatever is your notion, and I hope

we’re not into that kind of catechism of cause and effect, I’d like

to have you discuss the effect on investors.

I have some figures here that showed some remarkable actions,

which I think was very rational behavior, that investors pulled

more than $272 billion out of the stock market, and it looks as if

when they went to invest they invested in the bond market which

they regarded as more, as safer, $272 billion out, $650 billion into

bond funds. And then if you look at the middle class, 70 percent

of the money in the 401(k)’s were taken out, the proportion failed

or lost, proportion then fell to 49 percent. And it’s back up to 57

percent.

So, I would like you to discuss the effect that this collapse had

on investor confidence and how it affected the availability of capital. In other words, if people were not putting their money in the

stock market, what was the effect on the availability of capital?

Ms. SCHAPIRO. Congresswoman, I think, and I believe this very

deeply, that the foundation of our markets is absolutely built on investor confidence, and we can see how portable capital is and how

quickly investors will react to what they perceive to be failures in

the marketplace because of fraud, because of inadequate information, and an issue I’m most particularly familiar with is what happened after May 6th when our equity markets performed in a very

aberrational way as a result of market structure flaws and high

frequency trading, and we saw for months and months after that

a steady outflow of investor funds from equity mutual funds because of concern about the integrity of the trading mechanism in

the marketplace. So I think for us, instilling and restoring investor

confidence in the integrity of our markets, whether it’s the disclosure regime or the market structure itself is really paramount to

the ability of companies to do IPOs and raise capital and create

jobs and grow our economy which is, at the end of the day, what

all of us want to see happen.

And for us that means getting this balance right between protecting investors and making access to capital affordable and efficient, is really sort of job one right now for us to strike that balance

appropriately.

Ms. NORTON. So the collapse then decreased the ability of firms

to access the capital markets and to raise money on the stock exchanges?

Ms. SCHAPIRO. Yes.

Ms. NORTON. There are some who suggest that if you rolled back

the investor protections that the impact would be some of the, some

of what we see on this chart would be alleviated. What do you

think would be the impact on the confidence of American investors

if you were to roll back or we were to roll back the investor protections that have recently been instituted or established?

Ms. SCHAPIRO. Well, while I think it is very worthwhile or for us

to look at whether our rules can be altered and tweaked in a way

that facilitates capital formation and doesn’t harm investor protecVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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tion, I think a complete rollback of investor protections wouldn’t

serve anybody’s interest, not investors nor companies.

Ms. NORTON. How much of a rollback?

Mr. MCHENRY [presiding]. The gentlelady’s time has expired. If

you could finish answering the question. I also know you have a

hard stop time of 5 minutes ago.

Ms. SCHAPIRO. I do. Thank you. It is not a question that can be

answered in generalities. I think it’s really a matter of looking at

each and every one of our rules to see where there might be flexibility that will facilitate capital formation without doing harm to

the investor protections, because at the end of the day those protections serve the companies well, as well as investors.

Mr. MCHENRY. The gentlelady’s time has expired.

Chairman Schapiro, thank you for appearing before the committee and thank you for your time, and we certainly hope that you

can make it to your next appointment in time. And with that, 5

minutes for Mr. Lankford from Oklahoma.

Mr. LANKFORD. Thank you, Mr. Chairman. And thank you,

Chairman Schapiro, for being able to be here. We appreciate your

time. I completely understand.

We’re going to talk to you a little bit of the XBRL language shift

that’s happened a little bit and I want to get a chance to talk a

little bit about that 2009 SEC sort of collecting the financial statements using that XBRL language and the plain text. Can you update us on the efforts and in that transition how is that going at

this point? Where are we in that shift?

Ms. CROSS. I appreciate your question. The XBRL requirements

are being rolled out over time based on the original adoption schedule. So the next phase of companies is the smallest companies have

to start tagging and XBRL the face of their financials and I think

they have to block tag footnotes, and the rest of the larger companies will be doing the detail tagging of their footnotes I believe

starting at for quarters ending after June 15th. So it is in the

works.

Mr. LANKFORD. How is that going as far as the rollout? What has

been the response back from companies on that?

Ms. CROSS. I think, I will admit, it’s mixed. Some companies are

very concerned about the additional time that it takes and so we

hear that they would like there to be, for example, a time delay between when they have to get the XBRL on file compared to when

the 10Q, for example, the quarterly report, is due, which is a question we’ve been thinking about. We’ve also been hearing that there

are concerns in the smaller business community about the possible

costs of taking on this new requirement in June, but at the same

time I would say that the usefulness of the information is starting

to become more apparent, so recently our staff was able to do some

really good analysis based on using the tagged information, and I

was really pleased with what you could do comparing, for example,

pension fund rates of return being assumed in the financial statement. So that it’s a new cost and it’s a new burden, but it’s also

useful information.

Mr. LANKFORD. How is that going as far as the fraud and capturing that, what we were just talking about as well from the SEC

side? Is it fulfilling what we had hoped it would fulfill?

34

Ms. CROSS. I think it’s too early to tell. The amounts are just

now starting to show up in the financial statements and we’re just

now getting the tools to use it because the key here is that you

have to be able to use it and we’ve had to spend the money to be

able to buy the tools to use the data so we’re not at that point yet,

but it is helping us issue better comments on the filings of companies when we see aberrational amounts that show up because of

the XBRL.

Mr. LANKFORD. Are we picking it up faster? I know it has to be

faster than pen, paper reading through it on plain text and going

through it with a pencil.

Ms. CROSS. You need both.

Mr. LANKFORD. So perpetually we’re going to have both the plain

text version and the XBRL version you think as far as submitting

it?

Ms. CROSS. I think it’s going to depend a lot on how the markets

and the investing public develops because unless the public can use

XBRL we need the plain text because the information at the end

of the day is for them, not for us.

Mr. LANKFORD. Let me ask you on a couple of things, where are

we as far as timeline on the fiduciary rules? That has been a topic

of obvious conversation in trying to figure out when are these fiduciary rules going to come down dealing with the brokers and CFEs

and all that. How is that all going to balance out? Not necessarily

what the decision is, that’s not what I’m asking. When is the

timeline for that decision?

Ms. CROSS. I apologize. I’ll have to get back to you with an answer for the record. That’s not in my, Corporation Finance Division, so with Chairman Schapiro not here I don’t know the answer.

I believe that it’s not right now, but——

Mr. LANKFORD. That part I knew.

Ms. CROSS. So you know more than me. I’m sorry. I will have to

get back to you with the answer for the record.

[The information referred to follows:]

[NOTE.—The information referred to was not provided to the

committee.]

Mr. LANKFORD. We will try to followup on that on the record just

to get a feeling on that.

Going back to some of the other information, the prospectus and

such, as it comes out, give me a feel. There is somewhat a sense

that we can solve a problem dealing with fraud based on adding

more text to someone at the beginning. If you go to a typical

constructionsite right now, there are 28 different posters up on the

wall in the constructionsite defining out all the issues that are

there. If you’re going to get a home mortgage, be prepared for

reams and reams of paperwork that are going to be involved in

that. The prospectus is rather long for a lot of things.

Is that fulfilling what we hope it would fulfill by continuing to

add additional text to different prospectuses to get more information out to it or has it hit a point where no one is going to read

it because it’s so protracted now?

Ms. CROSS. I think that’s an excellent question, and in fact one

of the projects that I have wanted to undertake is a review of all

35

the disclosure requirements to see if there are some we could actually get rid of.

Mr. LANKFORD. That would be very helpful.

Ms. CROSS. Because there is a pile-on effect. So I agree that

there can be too much. Investors and analysts in particular tend

to want more information and so to take some away can take some

doing. But we, I think it’s very important that we take a look, and

I agree with you that we need to be careful to not just pile on.

Mr. LANKFORD. Thank you. That would be very helpful. Thank

you. With that, I yield back.

Mr. MCHENRY. Mr. Tierney is recognized for 5 minutes.

Mr. TIERNEY. I thank the chair. Thank you, Ms. Cross, for being

here today. I don’t have a lot of questioning for you. I just wanted

to touch on Sarbanes-Oxley a little bit. In that Section 404 that requires that an auditor attest to the entity’s internal financial controls. I know there’s been some discussion the first $75 million is

exempted out, companies over 75 million are in, some people want

to raise it to $250 million.

I would like to have your opinion on the effectiveness of the—

first of all, the burden on $75 million as opposed to $250 and

whether or not it’s outweighed by the benefits on that and just

what the benefits are.

Ms. CROSS. I appreciate the question. As you know, in DoddFrank, in the Dodd-Frank Act the companies below $75 million

public float were exempted from the audit requirement under

404(b). That actually takes out of the mix 60 percent of the public

companies, which is quite a significant number. The staff just posted its study, as required by the act, of the companies between $75

and $250 and found several important characteristics of those companies, one of which is that the companies in that category tend

to change a lot. So companies in the $75 to $250 may not be the

same year after year. So changing the application of 404 to that

group is very complicated and doesn’t really help them very much

because they would be moving in and out.

We also found that the companies in that category don’t tend to

be particularly different from the companies above 250. So it’s not

a discrete category that has characteristics that lend itself to saying, well, this is the group that should be out, and the benefit of

the audit, certainly it costs money, the costs have come way down

over the years with the addition of the AS 5, the auditing standard

that brought down the cost of that audit. But I think that the

staff’s conclusion was that the benefits of having that second set of

eyes at that, at this point outweighed the costs of the audit.

Mr. TIERNEY. Ironically, I think one of the findings for the chief

accountant was that when they attested the accuracy of financial

statements, they’re more accurate. It’s pretty common sense, but

they are finding out that is the case.

Ms. CROSS. That’s correct. Where there’s going to be a second set

of eyes, I guess people are a bit more careful.

Mr. TIERNEY. What do you think the consequence of eliminating

the safeguards of Sarbanes-Oxley in that respect would be?

Ms. CROSS. I’m sorry, eliminating the——

Mr. TIERNEY. The 404(b) provision.

36

Ms. CROSS. I think that there would be a significant concern that

the care taken in establishing and testing the internal controls

would go down over time. Not having that second set of eyes I

think is important.

The other thing is that if you don’t have the internal controls

audit, then the auditors have to do testing of the internal controls

to see how much they can rely on the financial statements even

without the audit of the internal controls. So the costs don’t necessarily correlate one for one.

Mr. TIERNEY. Well, thank you for being with us this morning,

Ms. Cross. I yield back.

Mr. MCHENRY. And with that, Mr. Meehan is recognized for 5

minutes.

Mr. MEEHAN. Thank you, Mr. Chairman.

Thank you, Ms. Cross, for being here today.

I want to step off on an issue that was raised by my partner to

the left, China and the discussion of fraud that enters our marketplace. As we get into increasing globalization and more people come

to raise capital in the United States but have significant assets and

operations overseas, what kind of protections do we have in place

to assure that if there is a remedy that needs to be reached that

we can get at assets or individuals or otherwise that are operating

in these foreign countries?

Ms. CROSS. That’s a very good question, Congressman. We don’t

have the same remedies that we do here. And the way the securities laws are structured, we deal with that through disclosure. We

let companies warn investors that they won’t have the same remedies if there’s a problem with the company.

We don’t—the SEC doesn’t have a merit regulation screen. We

don’t have authority to tell companies you can’t raise money here

if you provide sufficient disclosure.

What we’ve tried to do, though, to provide as much investor protection as we can in light of these concerns is, for example, Chairman Schapiro met yesterday with the head of the Chinese Securities Regulatory Commission to discuss better ways for us to share

information to get at our concerns about are these companies for

real? Who are their promoters? And we have a new initiative to get

a better sense of how are the audits being done. You do have to

have an audit. And so are we appropriately regulating those auditors? Are they going over and looking at these companies or are

they doing it remotely with people on contract? That would be a

concern. These are all issues that we recognize are very important

that we get on and so we’re doing the best we can.

Mr. MEEHAN. That’s right. It’s not just, it’s not just those auditors. It’s also the ability for sort of the independent analysts that

come. There’s already a shortage of the kind of analysis that we

like to be seeing on the market now. I think there’s been a shrinking of the banking institutions and otherwise commitment to do an

analysis.

Are we getting the kind of cooperation to allow analysts to travel

to the foreign countries and be given complete access to the information that companies here would be giving to analysts?

37

Ms. CROSS. That’s a fair question. I don’t know the answer to

that. I think we would be happy to check and get back to you for

the record.

[The information referred to follows:]

[NOTE.—The information referred to was not provided to the

committee.]

Mr. MEEHAN. Let me switch my questioning just on the issue of

the cap of the 500. One of the concerns that I have is in this environment we’re seeing a great deal of frustration on the part of entrepreneurs who are trying to raise capital in difficult times. Obviously one of the things they are looking for is access to the markets.

One of the things that inspires people to continue to work in sort

of startup companies is the idea that they can take and gain some

equity stake by being given shares in the company. Are we doing

anything or can you talk a little bit about what kind of incentives

we can give to carve out the counting of that 500 for individuals

who are sweat equity holders in these startup companies?

Ms. CROSS. That’s an excellent point. And I appreciate that is a

key way that they can incentivize employees to come work for them

and work hard.

We have done a few things. First off, the options that are granted to employees don’t count against the 500. So we adopted a rule

in 2007 that said you don’t have to count the options. We have, the

staff in my division has provided relief also to companies that they

don’t have to count restricted stock units that are provided to employees.

So far, you still have to count stock. They’re stockholders like

anyone else. Our review that we’re getting ready to undertake of

Section 12(g)’s 500 limit will consider the question of should employees be counted the same way.

There are concerns. There are certainly frauds that happen

where employees are the ones who lose both their job and their investment. So you do want to watch out. You don’t want employees

to lose everything when there’s a fraud at the company they work

for. So we need to balance those.

Mr. MEEHAN. My concern as well as the inability—or the ability

that has to crowd out the ability for, it sort of limits the pool of

people as well, the 500 that allows us to raise money if in fact you

are including those kinds of shareholders in your number, then it

makes a smaller pool that effectively you can raise your dollars

from which presumably then sort of has—would you agree that has

a chilling effect then on the ability? Because I would think that it

would cause the cost of that capital to increase for a small business

trying to attract investors.

Ms. CROSS. We have heard that the 500 cap is an impediment

to capital raising. And the question we need to look at is 500 the

right number? And are we counting correctly? Because there’s a lot

of companies that are actually private companies that trade in the

OTC markets that have thousands of holders. But they are held in

street name and so they only count by broker. And so we need to

look at how are we counting and is the number the right number

and are the right people included in the count? So there’s a whole

lot of good hard questions we need to know the answers to.

38

Mr. MEEHAN. Thank you, Ms. Cross. I yield back.

Mr. MCHENRY. The gentleman’s time has expired.

Mr. Connolly for 5 minutes.

Mr. CONNOLLY. Thank you, Mr. Chairman.

Welcome, Ms. Cross.

Ms. CROSS. Thank you.

Mr. CONNOLLY. Ms. Cross, between 1990 and 2000, or between

the 1990’s and the 2000’s, did SEC issue new regulations affecting

IPOs?

Ms. CROSS. Not—I don’t believe so.

Mr. CONNOLLY. You did not issue new regulations affecting IPOs;

that is what you just said?

Ms. CROSS. In that timeframe I’m not aware that we had significant new regulations——

Mr. CONNOLLY. Right. And yet we are supposed to buy into an

argument that it was this stifling new regulations or regulatory environment that, in fact, choked off IPO activity?

So if one were to conclude that, well, you can’t cite new regulations in that time period, one wonders what it might be.

Are you familiar with David Weild?

Ms. CROSS. That’s a study?

Mr. CONNOLLY. Former vice chairman of NASDAQ?

Ms. CROSS. Oh, yes. Yes.

Mr. CONNOLLY. He wrote a paper called ‘‘Market Structure is

Causing the IPO Crisis’’ in June of last year, co-authored with Edward Kim. He writes, the crisis started before Sarbanes-Oxley in

2002. The IPO crisis was not induced by Sarbanes-Oxley, regulations, fair disclosure or NSD Rule 2711, separation of banking and

research. Each of these changes occurred well after the IPO crisis

was underway.

That’s what he writes. Would you agree with that assessment.

Ms. CROSS. I think there’s a whole host of reasons why IPOs are

fewer than they were before, and I think that, I appreciate that different people attribute it to different reasons. I think that certainly

the market structure has changed. There used to be a lot of smaller

investment banks who did the small IPOs and those small investment banks are mostly gone.

There used to be research written about little tiny companies,

but the structure of the investment banking industry no longer

supports research about little tiny companies. And so the little tiny

companies are the ones that are not tapping the public market, and

I’m sure cost of regulation is one factor in that. But I also think

that the market structure changes are also quite important.

Mr. CONNOLLY. Well, he seems, the former vice chairman of

NASDAQ, hardly a gung-ho regulator, he seems to believe that this

IPO crisis predates whatever new regulation occurred post Sarbanes-Oxley, Sarbanes-Oxley and subsequently, and then as a matter of fact it can be attributed to a dysfunctional IPO market itself,

that it’s a failure of the market itself in terms of what happened

with arbitrage and what happened in terms of where capital went,

sort of switching from productivity-oriented investment opportunities to sort of quick turnaround investment opportunities and you

see that reflected in the broad market.

Would you think that’s a fair observation on his part.

39

Ms. CROSS. Well, I’m not the expert he is, but I would say that

those are certainly observations that I’ve heard that many agree

with.

Mr. CONNOLLY. Would there be consequences in your view if we

sort of had a broad brush elimination of regulations currently governing the IPO market?

Ms. CROSS. Yes, I think there would be very significant negative

consequences if that were to occur because then you wouldn’t have

sort of a level set of minimum investor protections that could be

expected as a company enters the public market seeking money. So

I think that there would be significant adverse consequences both

to the public and to the companies because those that are good and

honest would be harmed by the bad actors who would cause investor confidence to wane, and investor confidence is key to having a

robust capital market.

Mr. CONNOLLY. And have there been some bad actors?

Ms. CROSS. Yes.

Mr. CONNOLLY. Oh. Against whom the public needs to be protected?

Ms. CROSS. That’s right. Yes.

Mr. CONNOLLY. So it’s more than caveat emptor. Maybe the Federal Government has a role here to try to protect the consuming

public and the investing public?

Ms. CROSS. Absolutely, yes. We have to calibrate the regulatory

environment and the ability to raise capital and get it right, and

that’s a very challenging task that we try very hard to do.

Mr. CONNOLLY. Thank you. My time is up.

Mr. MCHENRY. Ms. Buerkle for 5 minutes.

Ms. BUERKLE. Thank you, Mr. Chairman. I have no questions.

Thank you.

Mr. MCHENRY. Will the gentlelady yield?

Ms. BUERKLE. Absolutely. Thank you.

Mr. MCHENRY. I certainly appreciate her yielding. And Ms.

Cross, in terms of independent financial statements, having, ensuring that there is independent audits of firms, do you think that is

proper and good procedure?

Ms. CROSS. Definitely yes, that’s important.

Mr. MCHENRY. I know it’s an easy question but, and that gives

the investors some assurance of the legitimacy of the financial

statements?

Ms. CROSS. Yes. It does.

Mr. MCHENRY. So in terms of that step of the process, then the

question about accredited investors, why is there this class of accredited investors? Why is that important in the SEC’s view?

Ms. CROSS. Well, the notion of a accredited investors is, to be

clear, there’s no special accreditation. If you have $1 million net

worth, then you fit in the definition. If you make $200,000 a year,

you fit in the definition.

Mr. MCHENRY. Why is that important?

Ms. CROSS. Those are the investors that—this test was put in in

the early 80’s and in the early 80’s it was determined that those

are investors who could fend for themselves and didn’t need the

protections of the securities laws and so they could participate in

unregistered private offerings.

40

Mr. MCHENRY. So why limit that number if those, if that class

of people doesn’t need the level of protection that you are seeking

for me as an average investor?

Ms. CROSS. You mean in connection with the 500 holder limit?

Mr. MCHENRY. Yes.

Ms. CROSS. I think it’s a fair question. I think that the, I will

say that since the number was set in the early 80’s one might question whether that is still the right number to identify the people

who can fend for themselves. But assume that it is, then when

Congress put in its test in the early sixties for the 500, did they

have in mind that those were companies that were trading and did

they, for example, you don’t—you have to register if you are trading on the New York Stock Exchange, it doesn’t matter if your investors are accredited or not. So it’s a different test. If securities

are trading in our markets, do we want a certain level of information available? But it’s a fair question for a company that’s not

trading in a market today, should we eliminate some number of investors from that count, whether they be accredited or qualified institutional investors or some other group? And it is absolutely

something we want to consider.

Mr. MCHENRY. OK. And that’s part of the process that you are

reviewing right now?

Ms. CROSS. Absolutely. Absolutely.

Mr. MCHENRY. Because I think everybody has this question,

what is the proper balance?

Now in terms of general solicitation. I know there’s been an enormous discussion because of what we saw with FaceBook, that in essence out of concern that it was a public solicitation because word

got out of this private offering of FaceBook stock, that meant that

they could not offer those securities to American investors. So they

offered it to foreign investors.

Now I understand there are regs on the books, but there is also

litigation associated with that, is there not? A significant amount

of litigation on what qualifies as general solicitation?

Ms. CROSS. I think there is some case law about it. Just to be

clear, as we said in the letter that Chairman Schapiro sent to

Chairman Issa, the staff did not tell Goldman Sachs and FaceBook

that they couldn’t conduct their offering in the United States and

in fact there is some SEC guidance that would have actually suggested they could.

They may have decided not to conduct the offering here because

of concerns about private parties asserting that they had a rescission right because of potential public offering. So if that is what

your question is about.

Mr. MCHENRY. Is there a review currently about general solicitation and those rules?

Ms. CROSS. Yes, that is definitely. That’s one of our workstreams

is to consider whether the ban on general solicitation is still appropriate in this day and age.

Mr. MCHENRY. OK. And what do you think your timeframe is

there?

Ms. CROSS. On that particular workstream, that is less complex

than the 12(g) 500 holder workstream. So we’ve started already to

put together the research that needs to be done. I think my likely

41

recommendation would be for the Commission to issue some sort

of what’s called a concept release where we put out the general

question of it, does the public think this is a good idea? What dangers would it cause? So that’s, I can’t commit to a specific timeframe but it’s certainly shorter than the 12(g).

Mr. MCHENRY. Next year? Within the next year?

Ms. CROSS. I think certainly the process will start in this year,

and then we’ll get the feedback.

Mr. MCHENRY. Thank you. And thank you for your candor. With

that, Mr. Cooper is recognized for 5 minutes.

Mr. COOPER. Thank you, Mr. Chairman. I have no questions, but

I would be delighted to yield my time to my friend and colleague,

Mr. Cummings.

Mr. CUMMINGS. Thank you very much. Let me just go back to

something I had asked Chairwoman Schapiro about. And I was, I

had asked her about when you gather all the information, what are

the kinds of things that you will be looking at to strike the balance?

She told me where the information would be coming from but

didn’t get into what kind of things you’re trying to—what goes into

that process of striking a balance? We’ve had a wonderful discussion here about the problems and what have you. But I’m trying

to figure out when you sit down at the table, are there certain principles that may be guiding, guiding principles so that you can have

a way of weighing what you’re doing so that you come out with—

and I’m not asking you for your final solution, I’m just trying to

figure out what are the kinds of things that you think, that you

think that you all would be looking at. I’m mainly concerned about

again those guiding kind of principles.

Ms. CROSS. That’s an excellent question, Congressman. I think

that the—starting, for example, with the ban on general solicitation, if we eliminate the ban so that offerings, private offerings

could be made to accredited investors through publicity, through

advertising and the like, I would want to know whether we’re confident that the group that’s getting sold to is the group that doesn’t

need protection and that the people that are getting sold to are in

fact accredited investors. So those are things that I think will be

important in the mix. If they don’t need the protections of the securities laws, then it may make sense to make it easier to reach

them. If they are the group that needs the protections of the securities laws because either they’re not really accredited and they’re

getting, they have fraudulent brokers who are putting them into

deals they shouldn’t be in. So I’m very concerned about that factor,

so I would like to, and so in that area those are the, those will be

going into our, the staff’s recommendation.

On the 500 holder limit, I would like to know what the investor

makeup is in these companies and I would like to know what the

characteristics are of these companies. Are these companies that

are real companies? Are they more fraudulent companies that are

trading in the sort of dark markets and held in street name and

you don’t really have, they have thousands of investors but they

only count as 200 because they’re held through brokers, or are

these companies that are the engines of growth and they have 499

holders and they can’t raise another dime because they can’t get

42

one more holder, and those are 499 actual investors. I think those

are important points. And if the answers come out—we may need

different answers for different kinds of companies, different situated companies, companies who go dark because they are held

through street name might need a different test than companies

that are held by investors directly and are bumping up against the

limit and are in desperate need of capital.

Mr. CUMMINGS. Now with regard to those who need to be protected, will you be looking at, you said that you would, you’re concerned about them, but then going back to some questions that Mr.

McHenry asked about who it is that is in need of protection, do you

all see that changing? In other words, is that something that you,

is that a definition that you might want to revisit at some point?

I’m just curious.

Ms. CROSS. Well, the accredited investor definition amended in

Dodd-Frank to change the net worth test to eliminate the primary

residence. And Dodd-Frank otherwise says that we’re not to revise

that definition, I believe it’s 4 years. And GAO is doing a study of

the definition in the meantime. So I don’t see that as a definition

we’re changing on the immediate horizon but it is a definition that

does need to be a living, breathing definition as investors change.

For example, should there be a special accreditation for people who

are chartered financial analysts who don’t happen to have a lot of

money for some reason, things like that; it might make sense to

add people to the list.

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I yield

back.

Chairman ISSA [presiding]. I thank the ranking member.

I have only one question for you as a quick followup.

The current statute envisions that all investors are in one pool.

So if a company has no program for their employees to own stock,

no, any form of stock options, they could have 500 street name investors which could be thousands of actual investors through

their—well, if a company has 1,000 employees they want to offer

they have no choice but to in fact avail themselves of an alternative

because the same 500 applies regardless, isn’t that true?

Ms. CROSS. It’s correct that the same 500 applies.

I think that for some companies that are traded in the over-thecounter markets, not on exchanges, they are held in street name;

even though they’re not reporting companies, those companies

could also have their employees hold in street name in theory.

Those are not the kinds of companies we’re really talking about at

this hearing. I think the companies you’re talking about are the

companies that are pre-IPO companies who are growing——

Chairman ISSA. Correct.

Ms. CROSS. —dynamically, and for those companies the employees being counted certainly weighs into a meaningful cap.

Chairman ISSA. OK, and that was just the point that I wanted

to make sure we understood, that when we talk about protections,

that it’s, in fact, not a fixed protection. It can be a very large number by comparison if employees are not offered and a very small

one if there were hundreds of employees in that mix.

Ms. CROSS. That’s right.

43

Chairman ISSA. Thank you. And with that I thank you for your

participation in this panel and your patience through all of it.

And we’ll take a 5-minute recess to set up the second panel.

Thank you.

Ms. CROSS. Thank you.

[Recess.]

Chairman ISSA. Thank you all for your patience. I noticed, I believe, all of you in the audience. So you know our questions. Now

the question of course will be will your answers be similar to the

first panel?

I knew I would get a laugh if I worked hard on it.

We now recognize our second panel.

Mr. Barry Silbert is the CEO of SecondMarket, an alternative

trading system and a young entrepreneur in his own right.

Mr. Eric Koester is the cofounder of Zaarly, Inc.

Dr. Richard Rahn is Senior Fellow at the Cato Institute.

And Mr. Jonathan Macey is a law professor at Yale University.

Last but not least, the Honorable Roel Campos is the former

Commissioner of the Securities Exchange Commission.

As you saw in the first panel, our rules require all witnesses be

sworn. So please rise and take the oath.

[Witnesses sworn.]

Chairman ISSA. Let the record reflect that all witnesses answered in the affirmative.

And as in the first panel, we will take 5 minutes on our side, and

I’ll try not to cut anyone off mid-question or—and I won’t cut any

of you off mid-answer.

However, there’s a lot more of you. So on your opening statements please limit yourself to 5 minutes, and with that, Mr.

Silbert.

STATEMENTS OF BARRY E. SILBERT, CEO, SECONDMARKET;

ERIC KOESTER, CO-FOUNDER, ZAARLY, INC.; RICHARD W.

RAHN, SENIOR FELLOW, THE CATO INSTITUTE; JONATHAN

R. MACEY, SAM HARRIS PROFESSOR OF CORPORATE LAW,

SECURITIES AND CORPORATE FINANCE, YALE LAW SCHOOL,

PROFESSOR, YALE SCHOOL OF MANAGEMENT; AND ROEL C.

CAMPOS, ESQ., LOCKE LORD BISSELL & LIDDELL, FORMER

COMMISSIONER OF THE SECURITIES EXCHANGE COMMISSION

STATEMENT OF BARRY E. SILBERT

Mr. SILBERT. Good afternoon, Chairman Issa, Ranking Member

Cummings, and members of the committee. My name is Barry

Silbert, and I’m the founder and CEO of SecondMarket. I’m grateful for the opportunity to testify this afternoon regarding the future

of capital formation, an important issue that directly impacts job

growth and U.S. global competitiveness.

I founded SecondMarket in 2004 to create a transparent, centralized and independent market for alternative investments, including

stock in private companies.

We’ve grown rapidly and now have 135 employees in New York

and San Francisco and have completed several billions of dollars in

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transactions. We’re a registered broker-dealer with FINRA and an

SEC-registered alternative trading system.

SecondMarket’s unique business model is premised on transparency and independence. We do not engage in proprietary trading, meaning we do not use our own balance sheet to purchase assets that are put up for sale in SecondMarket.

Up until a decade ago, fast-growing startups followed a very

similar capital formation path. They raised venture capital, a few

rounds of venture capital, and went public in about 5 years. For

several decades, these small cap companies could thrive in the public markets with research coverage, brokers and market makers

driving investor interest in these companies. The public market allowed companies like Starbucks, Intel, Genentec, and Dell to grow

from small cap companies into job-creating economic powerhouses.

However, the capital formation process has evolved over the past

decade, and the public markets are no longer receptive to small

companies. It now takes companies twice as long—nearly 10

years—to grow to reach the public market.

A number of factors have contributed to the systemic problems

that exist in the public market. These include a shift from stockbrokers to online trading, the inability for market makers to profit

for supporting smaller cap stocks, the lack of research coverage on

smaller companies, and finally, the implementation of SarbanesOxley, which made it cost prohibitive to be a public small company.

You can read more about these issues in my written testimony.

One other important systemic change is the emergence of computer-driven, high frequency trading. Although it brings liquidity

to the public markets, these traders ignore small cap companies

and have contributed to the casino-like trading atmosphere in the

markets. Disturbingly, it is estimated that nearly 60 percent of

public trading volume is being done by computer algorithms, which

has caused the average time that a public share of stock is held

to decline from 5 years in 1970 to less than 3 months today.

The small cap market is a vital part of the capital formation

process, and the failure of the U.S. capital markets to support

these companies inhibits our ability to create jobs, innovate and

grow. Consequently, a new growth market must emerge to support

these companies, and I believe that SecondMarket is that market.

Chairman Schapiro has said that the SEC is reviewing the regulatory landscape to lessen the burden on private companies. President Obama has also ordered a review of government regulations

that place an unnecessary burden on businesses. I applaud the

commitment of the SEC and the administration.

I believe there are two regulatory hurdles in particular that must

be reexamined. First is the so-called 500 shareholder rule. As discussed previously, pay structure at startup companies generally involve giving employees below market salaries coupled with stock

options. These options enable employees to realize the financial upside while enabling the startup to hire top talent even though they

don’t have the cash to pay market salaries.

As a result, this rule has created a disincentive for private companies to hire new employees or acquire other businesses for stock

as the companies are fearful of taking on too many shareholders

and thus triggering a public filing requirement.

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The second rule that must be reexamined is the prohibition

against general solicitations. Given that only accredited investors

are eligible to purchase unregistered securities, such as private

company stock, we should strive to maximize the pool of investors

that are aware of any offering. In short, let everyone see, but only

let accredited investors invest.

Given the foregoing, I would respectfully propose the following

rule changes: First, a significant increase or elimination of the 500

shareholder threshold. Second, if a threshold is increased but not

eliminated, an exemption for accredited investors from that count.

The SEC has already determined that these investors do not require registration level protection, and therefore this exemption

would be consistent with the SEC’s investor protection mandate.

Third, if the threshold is increased but not eliminated, an exemption for employee owners from the shareholder count. And finally,

an elimination on the prohibition of general solicitation provided

that the ultimate purchaser is, in fact, an accredited investor.

I believe the problems facing growth stage companies must be

addressed and failure to support a new growth market will significantly limit access to capital, restrict job growth, stifle innovation,

and weaken the United States globally.

Thank you again for the opportunity to participate in this important hearing. I would also like to thank the SEC for considering

these important rule changes.

[The prepared statement of Mr. Silbert follows:]

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Chairman ISSA. Thank you. Mr. Koester.

STATEMENT OF ERIC KOESTER

Mr. KOESTER. Hello. Thank you, Chairman Issa, Ranking Member Cummings, and members of the committee. My name is Eric

Koester, and I’m one of the founders of Zaarly, a location-based,

realtime, community-powered marketplace launching—crossing

your fingers—nationwide this month. I greatly appreciate the time

to come before you today.

I am what Mr. Silbert earlier described, a hopeful fast growing

company. And as a former startup lawyer turned entrepreneur myself, I have had the unique opportunity to advise, counsel, and educate thousands of entrepreneurs and early stage businesses as well

as live the life of business owner myself. Therefore, I have seen

some of the challenges affecting today’s entrepreneurs and small

businesses firsthand.

My testimony today is aimed to highlight specific concerns from

the mouths of entrepreneurs that affect the ability of our young

companies to hire and increase jobs, to innovate, to compete globally, and to grow our broader economy.

Today I would briefly like to tell the story of why it is important

to act to decrease friction for entrepreneurs and small businesses,

to increase liquidity in our private markets, and to regain the leadership position to support early stage businesses.

Others on this panel may be better suited to provide information

such as data, research and analysis on broader market trends, but

my purpose as an entrepreneur here today is to share how some

of these regulations can impact our ability to fund and grow these

emerging small businesses.

Today’s economy is very different, and entrepreneurs and small

businesses have unique opportunities. In speaking with entrepreneurs and myself, I believe there’s a few key lessons that we

can learn from the proverbial entrepreneurial field.

First, building a small business today is actually cheaper and

easier than it’s ever been before in our Nation’s history.

Second, and a big however, building a business is not cheap, and

it still requires substantial resources and investments to make

these businesses thrive.

No. 3, raising funds in itself is difficult, and it has become more

difficult given the decreased liquidity of our banking system, and

identifying prospective investors is extremely distracting to the

task of building and starting a new growth business.

And fourth, the most important lesson learned from entrepreneurs today is that removing friction, friction in business, friction in commerce, friction in human capital and, important to this

economy committee today, regulatory friction is crucial to be able

for these businesses to do more with less.

I would like to tell a brief story about my current business,

Zaarly, and why I think that removing friction is so important to

the success of other businesses like ours.

My business was just an idea 11 weeks ago. In the last 11 weeks,

we’ve been able to hire a team of nearly a dozen individuals, nearly

50 contractors, open two offices, deploy robust technology solution,

raise funding and hopefully file several patents and trademarks to

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ready a marketing effort to take the Nation by storm—we hope—

this month. Our goal is to be, with some luck and support of customers, the next Amazon, eBay or Groupon.

The important lesson to learn about Zaarly is that we’ve

launched this market in a very short and rapid time, leveraging

the speeds and the trends in industry. But what’s also important

to know is that other businesses may not have the advantages that

a Zaarly has by having a reformed corporate lawyer on their team

to navigate some of the difficult legal issues.

So the story of Zaarly and its rapid growth and hopeful success

from here highlights some several lessons. It highlights that the

regulatory schemes are very complex for early stage businesses and

are distracting to their success.

Sufficient funding resources are crucial to their speed and there

are dozens of ways for these businesses to trip up on the existing

regulatory scheme. So alternative funding schemes are important

to find and to reduce the operational expense of taking a business

from a startup to a successful business venture.

Therefore, I’d like to propose and encourage the Commission and

this entire committee to look at four important things: Continue to

examine private company fundraising and financing regulations,

including things such as general solicitations and the ability of private investors to be deemed accredited when they are sophisticated

investors.

Second, to explore more options like private market regulations,

like my colleague Mr. Silbert’s SecondMarket, which can increase

liquidity for lower tier businesses in the chain such as myself.

Third, to explore the options for community funded or funding organizations where small dollar amounts contributed by the community can be used to fund businesses like mine.

And finally, while not within the purview of this committee, I

think it’s important that the immigration reform impacting

startups, such as the startup visa program, H–1B visa extensions

be explored.

I want to express my gratitude for being here today and thank

you very much for exploring these important issues. Thank you for

your time.

[The prepared statement of Mr. Koester follows:]

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Chairman ISSA. Thank you. Dr. Rahn.

STATEMENT OF RICHARD W. RAHN

Mr. RAHN. Mr. Chairman, ranking member, and other members

of the committee, thank you very much for inviting me to be with

you here today.

I want to take a different tack. I want to challenge the conventional wisdom. We have a regulatory structure of the SEC which

was basically designed in the 1930’s, and the question is, is that

really appropriate for today’s Information Age?

If you had to start over again, let’s assume we had no SEC, how

would you design it? Would you create one? Would it look anything

like the SEC we have today?

There has been a lot of evidence that the SEC is somewhat dysfunctional. We’ve been losing global market share, we’ve had the

debate about the IPOs and how much that is—the reduction of

IPOs is due to the SEC and so forth.

One thing strikes me. A huge portion of the SEC budget goes

into enforcement. If the other divisions of the SEC were doing their

job, it would seem that we would have very few enforcement needs.

And is this really the way we want to go. There’s a theory in economics, there’s a whole public choice school of economics that looks

at the motivations of people within bureaucracies. In the whole

area of cost-benefit analysis I think is an undermanaged activity

within the SEC. We have a basic conflict. The SEC is an agency

primarily driven by lawyers, relatively few economists. And as an

economist, I have a certain bias here. But when I have been on a

board of a regulatory agency, and I have seen the problem, that the

regulators of course keep their jobs by coming up with more regulations and rules. I’m not saying they are of evil intent but it’s just

the nature of the way people operate, and the job of really the chief

economist role is to say no to rules that aren’t justified. But they

have to really be independent from the rest of the staff in order to

do an objective job.

We don’t see it at the SEC or most other government regulatory

agencies, and I think we have to rethink the whole structural

model of how we set these agencies up, in particular the SEC, to

give more balance to really looking at the costs and benefits of

every possible regulation, every piece of paper, everything that

comes out.

One example is the whole area of accredited investor. This started off with the perfectly good intent of trying to keep the—allowing

people who should be able to take care of themselves to be in without having to be regulated. But we look at what has happened.

Right now, we only have about 2 percent of the U.S. population

that qualifies as an accredited investor. Does this make any sense?

You can have a rock musician or a sports figure who meets the income and net worth standards, but a young tax attorney or professor of finance doesn’t. Does that make sense?

I don’t think we ought to have a system where we say only 2 percent of the population is so-called smart enough to be able to be

accredited investors. We ought to have at least 50 percent of the

population, or I think a lot more. Most people can make judgments.

People make mistakes. We find even the richest and most sophistiVerDate 17-JUN-2003 13:55 Oct 28, 2011 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70517.TXT KATIE PsN: KATIE
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cated make mistakes. We all make mistakes. But that doesn’t

mean the government ought to prohibit us from having the opportunities that only the wealthiest among us have.

Insider trading, everybody has been against insider trading. It

seems logical to oppose insider trading. But there’s a lot of new

academic evidence, scholars, law and economic scholars, who have

studied it and say no, this is actually causing us more problems.

We get into the whole area of what I call vague law with insider

trading. The SEC brings many insider trading actions, but they’re

unsuccessful in the vast majority of these. And part is because we

can’t even define insider trading. And so I argue that we really

need to go back to square one here, think of how we set up these

organizations to truly protect investors and not get hung up with

the things that we’ve done in the past which may not be sensible.

Thank you very much. I do appreciate the opportunity to be here

with you today. Thank you.

[The prepared statement of Mr. Rahn follows:]

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Mr. MCHENRY [presiding]. Thank you, Dr. Rahn.

And Mr. Macey.

STATEMENT OF JONATHAN R. MACEY

Mr. MACEY. Thank you. It’s a great pleasure to be here and I enjoyed very much listening to the questions and the answers, particularly the questions in the first panel which I felt were extremely well informed, and I wanted to elaborate on some of the

points that were made in light of my own views of some of the

issues that are facing us in terms of capital formation.

First, we have two competing sets of statistics with regard to initial public offerings in the United States, and I want to make it

clear that both of these sets of statistics are interesting and important and accurate.

One set of statistics, introduced by the chairman, is the idea that

the number of U.S. public offerings over the last 20 years has been

in decline. That statistic becomes more interesting, I think, it’s an

interesting statistic, it becomes even more interesting in light of

the article from the Atlantic Monthly that the ranking minority

member mentioned that says that while the number of initial public offerings may be going down, the amount of money raised in

public offerings, not just the number of deals, but the actual

amount of money has been going up.

What that means, of course, is that because both of these sets of

statistics are accurate is that we’ve had fewer public offerings, but

each of the public offerings that we’ve had has been raising on average more money than investors have in the past. What this

means, I think uncontrovertibly, is that the capital formation process has come to be dominated by only the very largest issuers; that

is to say, with respect to the statistics in the Atlantic about the

amount of money raised in public offerings, one offering of $500

million counts exactly the same as 100 offerings of $5 million. And

I think this raises an extremely important point about the disproportionate impact of the regulations that we have.

Regulations have benefits and they have costs. The benefits are

generally the same for all investors and all firms. The costs, however, fall disproportionately on small and medium sized firms because they take the form of fixed costs, so the relative burden on

a very large company of going public hasn’t gone up very much, but

the burden on small and medium sized companies has gone up

quite a bit. And really if you compare the industrial structure of

the United States with respect to job formation, with respect to diversity, both in terms of product lines and in terms of technology

and in terms of geography across the country, the real strength of

the U.S. economy has been that we have a very large number of

small and medium sized firms and relative to European economies

and Asian economies, our economy is much better, the firms in our

economy are much better distributed between small, medium and

large firms rather than having, as we see in other countries, no

middle sized firms, or very few, and firms disproportionately collected at the small and the large end of the continuum. And I think

that it would be very useful in thinking about the reform of these

SEC rules, particularly the 500 shareholder ban and the general

solicitation ban, to think about the disproportionate impact of these

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rules on small and medium sized companies and to think about the

idea that in terms of job creation we really do not only want to encourage the total amount of money raised in public offerings, but

we also want to increase the number of companies, the number of

entrepreneurs, the number of businesses that have access to the

capital markets.

So with that, I will spend my last minute talking about a couple

of specific things, one the general solicitation ban and the 500

shareholder ban.

I don’t think that either of these provisions help small or medium sized businesses. I don’t think either of these provisions protects investors. I also want to point out as a factual matter that

the SEC’s justification for the general solicitation ban has changed

quite a bit over time. Now it is some idea that we need to protect

investors. It used to be, the original justification for the general solicitation ban was that we needed to stop investors from becoming

too enthusiastic about securities offerings, that if we allowed a general offering to take place then there would be a kind of a consumer frenzy that would occur.

So thank you very much for this time. I appreciate it.

[The prepared statement of Mr. Macey follows:]

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Mr. MCHENRY. Thank you for your testimony.

Commissioner Campos.

STATEMENT OF ROEL C. CAMPOS, ESQ.

Mr. CAMPOS. Thank you very much. Good afternoon. I wish to

thank Chairman Issa, Ranking Member Cummings, and the other

distinguished committee members for the invitation to testify

today. My name is Roel Campos. I’m currently a partner with the

national law firm of Locke Lord Bissell & Liddell, where I practice

securities law. I represent businesses and individuals.

I come before you today not as an expert or an advocate on a particular regulatory change, in particular ones that the committee is

considering. But instead I testify today from the perspective of a

former SEC Commissioner. Like you and the SEC currently, during

my tenure as an SEC Commissioner, I often faced the difficult challenge of how best to reform and improve securities laws and regulations.

I learned firsthand how difficult it can be to balance the goals

mandated by Congress, protecting investors, but also facilitating

capital formation and preserving the integrity of the markets.

With your permission, my testimony today has two modest goals:

Presenting a very short discussion of factors in consideration that

must be balanced to produce sound regulations and offering observations and suggestions to assist the SEC to achieve appropriate

reform of current securities regulation.

First, let me briefly begin by discussing investor protection. In

my experience, this concept, when raised, regularly produces cynicism and the disbelief that this is a serious goal in today’s complex

environment.

Many seem to believe that the concept of investor protection is

archaic and long ago ceased to be useful, that it is a musty relic

of a bygone era, the market crash of 1929.

I respectfully disagree. I submit that investor protection remains

today as important as it was 80 years ago when Congress made it

the fundamental underpinning of the securities laws.

As a commissioner, I was often asked with respect to investor

protection, Well, what investors exactly and do investors really

need much protection? Certainly the term ‘‘investor’’ is very broad.

Congress and the SEC have never made a distinction among the

categories of investors which include institutional investors, i.e.,

pension plans, which can represent public and private employees,

and often include in professional investors, private asset managers,

and hedge funds.

And finally there is the distinction of retail investors, the everyday person who holds a brokerage account or who tries to manage

his or her retirement plan. During my tenure at the SEC, I was

privileged to represent the Agency in the international arena where

I learned firsthand that our markets are unique. Securities markets in Europe and Asia are comprised almost exclusively of institutional and professional investors. In the United States, however,

retail investors provide a significant portion of the capital that is

invested. Retail investors, therefore, add a depth of liquidity and

offer a diversification to the investor base, to the U.S. markets that

cannot be found elsewhere in the world. Indeed, the liquidity and

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the diversity of the U.S. markets help convince many foreign investors to invest in the United States.

As a commissioner, I worried most about retail investors, as the

others often have strong associations and lobbyists to present their

views and their needs to the Commission and to the SEC staff. So

the retail investors, however, are the ones who most quickly can

leave the markets when the problems rise. And as was discussed

in the first panel, when there is a crash, when there is a problem,

those particular investors flee the fastest.

Let me move to some ideas that I have regarding the situation

that we have today.

The SEC has stated in the panel very clearly that they’re willing

to look at these particular issues, that they’re willing to consider

reform. In fact, they’re—Chairman Schapiro and Meredith Cross

were very clear about that. However, there has always been, and

I submit continues today, a deep annoyance that the SEC takes too

long to consider new ideas and recommendations for improvements.

This problem arises from, I submit, resources, insufficient staff that

have other skills that go beyond being lawyers. So I would submit

that’s an area of consideration for this particular committee.

And with that, I see my time is up and I thank you for permitting me to make these statements.

[The prepared statement of Mr. Campos follows:]

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Mr. MCHENRY. I certainly appreciate the panel’s testimony. It’s

very informative and helpful for policymakers here in Congress to

hear from you.

We’ll lead off with 5 minutes from Mr. Meehan of Pennsylvania.

Mr. MEEHAN. Thank you, Mr. Chairman, and thank you for this

distinguished panel, again, in addition to those who came before

us. I am struck by the remarkable amount of willingness on this

panel to be taking creative looks at where we ought to be going

with the SEC.

Mr. Silbert, I had the opportunity to spend a little time paying

some attention to your business model. Very impressive in terms

of what struck me is the idea that you really have created a market for sophisticated investors, people who take the time to understand that there’s a lot of different kinds of securities out there

that can become able to be liquid, which both creates liquidity; it

also allows people to participate that may not reach this threshold

for sophisticated investors.

Can we expand the definition of ‘‘sophisticated investor’’ some

way to include the kinds of people that put the sweat equity in understanding things but may not have the dollars behind their name

to take the risk?

Mr. SILBERT. Congressman, it’s an interesting idea that I think

has been floated over the past 6 months, 12 months, as this private

company market has grown in value or volume.

The way we operate right now, as you’re alluding to, we only

allow accredited investors to participate. And while we would certainly kind of welcome the expansion of the addressable universal

investors, we have to comply with the current regulations. The idea

of a test I think is a viable one, but I think it then comes down

to who administers the test and things like that.

Mr. MEEHAN. Dr. Rahn, you had talked about this 2 percent factor. What criteria that would be able to be utilized in this to create

a class that would be able to invest without having the——

Mr. RAHN. Well, the main thing we want to know is, have people

actually paid attention? All of us make all kinds of investments.

We buy houses and automobiles. One can go to Las Vegas and

gamble away your fortune. You don’t have any net worth requirements on that. We have people who are totally unsophisticated. If

we came up with a notion of accredited gambler, people would look

at that as laughable. We have the State lotteries, which I look as

a total financial rip-off.

But I think the main thing, rather than trying to say you have

to have a certain net worth or a certain education. If the SEC gave

a piece of paper to everybody who was going to invest, or if we had

one and it first pointed out the low probability of new ventures, you

know, give whatever statistics we had on that, warned people

against it, like we do lots of other types of warnings for everything

from cigarette labels and everything else, and say you have to do

your own due diligence. Just the mere existence of the SEC adds

risk.

Look at all of the investors in the Madoff Pyramid scheme who

claimed one reason they felt confident is because the SEC exists,

rather than doing their own due diligence. And obviously we really

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have to have a way to protect people who really can’t do any kind

of evaluation on their own.

But the vast majority of Americans I think have the brains and

the skills to be able to do this and to rule out all but 2 percent of

our citizens, because what that does is discriminate against young

people and others who want to get rich. We’re saying now, only the

people who are already rich can have the access to the best opportunities. That seems to me totally un-American.

Mr. MEEHAN. Professor Macey, you were precluded from getting

in the full scope of your testimony by the 5 minutes, but I enjoyed

reading your testimony. And I was a little bit—at some points, I

was struck by your notion that tied into one of the questions I

asked about China. The markets have changed dramatically in the

years since World War II. And you made a comment. You said the

SEC needs to make a clean break with the past relating to the fact

that the capital markets aren’t the only ones in the United States

now. We’re turning into a global marketplace. There’s more than

one cop on the beat. Where do we go?

Mr. MACEY. As I think I try to say in my testimony, I think the

people of the SEC are extremely bright and talented and well

meaning, honest, full of integrity. But there are—I think that we,

and when I say ‘‘we’’ I mean those of us in academia, the people,

frankly, who oversee, the people in Congress who oversee what the

people at the SEC do kind of inadvertently give these folks very

perverse incentives.

So for example, we heard in the first panel this morning something that we always hear from the SEC when they’re being questioned. They say, We’re doing a really good job. Look at the dollar

amount in fines we fined Goldman Sachs, this huge amount of

money. We’ve increased every year the amount of fines, that we returned $2 billion to the U.S. Treasury.

So we’ve set this up as the criteria by which we judge the SEC.

That means that what they’re going to do is go after the biggest

fine they can. That does not help the small or medium-sized investor. The smaller, medium-sized investor by definition loses small

and medium amounts of money.

So we’re giving the SEC preferences.

Another example is not just the SEC but our society generally is

much more kind of, if you will pardon the expression, ‘‘lawyered

up’’ than other societies. And a lot of what the SEC does—because

it is much more dominated by lawyers than any other regulatory

agency, either in the United States or in terms of its counterparts

in other countries. If you’re working at the SEC, you really cannot

make a career for yourself by making the securities regulations

simpler. No one wants to hire you to work at a big Wall Street firm

to charge you a lot of money to interpret simple regulations.

The more complex you make it and the fewer people who understand it, the higher value there is on your time in your post-SEC

world.

So I think we have these challenges that we need to—it is not

just a matter of—I don’t think it’s at all a matter of the people at

the SEC having a bad—you know, just being in favor of more regulation for kind of senseless reasons. I think there’s these very deeply kind of impacted structural issues that no one had to pay any

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attention to in the postwar period, because there weren’t any other

capital markets in the world.

During the Marshall Plan, as you well know, Europe was being

rebuilt; Asia, China had not emerged as a serious economy; Japan

was being completely rebuilt from the ground up. So nobody who

wanted to raise capital in any serious way could avoid the United

States. I think it’s very important to understand that times have

changed.

Mr. MCHENRY. The gentleman’s time has expired.

Mr. Cummings is recognized for 5 minutes.

Mr. CUMMINGS. Mr. Campos, you heard Dr. Rahn talk about only

2 percent, and he felt like it should be more like 50 percent of the

people investing; is that right, Dr. Rahn?

Mr. RAHN. Yes, sir.

Mr. CUMMINGS. What’s your feeling on that? I mean, you seem

to be very concerned about the retail investor. I think what Dr.

Rahn is saying is there are a lot of people who are much more sophisticated than maybe we think. But what’s your feeling on that?

In other words, how much protection do you think is needed? And

he claims that we’re basically locking people out. You talked about

the college kids and young people and whatever.

I am just wondering, I know you’re talking about striking a balance, but do you think we’re going too far?

Mr. CAMPOS. I think that is the fundamental question in regulation. And that’s where and why you have such heated discussions

at times, because you’re dealing with a broad concept, investor protection, within the aftermath of the 1929 crash when all of these

laws were written. And we have a very different world and a very

different economy today.

So when we talk about investor protection, I think you can

achieve investor protection by finding a way to allow all categories

of people—not necessarily through a financial test—to be able to

participate in particular investments.

The real protection that’s necessary is the idea that investors of

whatever category can get taken advantage of and can be lied to

and can be cheated and be misrepresented, or critical facts can be

hidden. So you can achieve this, I believe.

It may be ironic to some people but I favored, when I was at the

SEC, products that allowed under the Investment Company Act,

mutual funds—that allowed small investors to have a taste of some

of the more complex items if they were placed correctly in funds

and regulated. I felt why should only rich people have essentially

the opportunity to have the more sophisticated ideas and complexes?

So in summary, in a stimulus summarize, investor protection

goes toward the idea that you need a system that people are not

expecting to be guaranteed making money or profits. That’s not

what we have here. You can pick a stock and it may not go up, it

may go down, but the key is in so doing you’re not going to be

cheated. This particular company didn’t have the cash that it said

it had on hand or something else to lure that particular investor.

So that’s what’s important. And I think I would have other

things to say about the SEC if ever anybody is interested in that.

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Mr. CUMMINGS. One of the things you say in your testimony, you

state that after every scandal or malfunction of capital markets, investor confidence is down and retail investors leave the market.

What can the SEC do to help boost investor confidence in the U.S.

capital market?

Mr. CAMPOS. Great question, and people will disagree on that

one as well. But essentially what we need today, in my humble

view, is we need a market that operates in a way that doesn’t mystify, worry, perplex investors. I submit and I think all of us would

say it’s true if the market plunges 80 percent, you know, stocks go

from $40 to $2 in the space of 5 or 10 minutes, something is wrong.

And that is a scary event, if you permit me that term.

So from the get-go, I think that the markets need, you know,

careful study in that particular area.

What does fast trading—what does fast trading, in nanoseconds,

what has that done to the average person whose broker is somebody he knew of in high school and has his few hundred thousand

dollars, if it’s that much in today’s world, for his savings? Can he

or she just invest in IBM now, or whatever the popular stock,

Apple or whatever? Something is going on in these markets. That

needs study. That needs help, in my view.

Mr. CUMMINGS. Somebody asked a question. They said that the

system is so much—things are so much different than back long

ago. Do you think the SEC has kept up with that, the changes you

talk about, the nanoseconds?

Mr. CAMPOS. I agree with what many others are saying. I think

the SEC was established in terms of concept in the 1930’s. It’s an

Agency of lawyers. We need today statisticians, researchers, economists. The sort of things that the chairman and you would like to

do in terms of getting the SEC to look at things quickly and efficiently requires those types of skill sets. It requires resources that

the Agency doesn’t have.

What they have to do is go out, survey the system, survey the

literature, ask for comments, and then it’s essentially a who pushes

the hardest in terms of the players, a very difficult situation. Imagine a judge in a courthouse having to take opinions from 40 different sections and reading all the research themselves. It is a very

difficult situation in terms of figuring out what’s best for the markets, in particular when you don’t have the base of expertise.

So I do believe that one great improvement would be that the

Agency get resources to have those types of people involved.

Mr. CUMMINGS. Thank you very much.

Chairman ISSA. I thank the gentleman.

The gentleman from North Carolina.

Mr. MCHENRY. Thank you, Mr. Chairman.

Mr. Koester, how important is access to capital to you in this

startup.

Mr. KOESTER. Thank you very much. It’s actually an excellent

question, and I’ll address it personally from my current business as

well as from advising startups over time.

I think it’s the difference between a nice side of business that

supports your family and a business that really contributes in a

dramatic way to the U.S. economy. The business that we’ve started,

Zaarly, is a business that we hope will have a dramatic impact on

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markets, person-to-person commerce, and hopefully have an impact

on employment. But that’s only accessible to us because of the fact

that we had forward-thinking investors to put capital in early and

efficiently. That allowed us to run very quickly to the point where

we took a business from an idea to 12 weeks later to launching a

very large-scale business.

Mr. MCHENRY. Now, in terms of getting employees to come in for

a startup, is it important for them to have some method of sort of

long-term payoff?

Mr. KOESTER. Absolutely. Absolutely. I think equity is an important thing for people willing to take that kind of risk. But I think

that’s the thing that is attractive about startup companies and

early stage business is that risk/reward opportunity.

Mr. MCHENRY. Mr. Silbert, what function do you provide? Let’s

say Mr. Koester is able to hire a hundred whizzes at a very low

cost, but with equity in the company, in the hopes that this one

day goes public.

Mr. SILBERT. The issue today is, as I mentioned before, is it’s

taking twice as long to go public. So if you’re looking at a process

that’s going to take 8, 9, 10 years, that doesn’t work for anybody

involved in the capital formation process. It doesn’t work for employees. It doesn’t work for individual investors. It doesn’t work for

investor capitalists.

So we identified a need to create essentially a spring training to

enable companies to get to the point where they could go public but

also not have to subject themselves to a lot of the negatives of

being a public company, whether it’s the Sarbanes-Oxley, or disclosure, that type of thing.

So what we have seen over the past couple of years, there are

a growing number of companies that have come to appreciate that

if you can allow your employees at a certain point in time, the right

time, maybe it’s 4 years, 5 years into it, allow them to taste some

of value that they have created, that money is typically reinvested

into other companies as well, and they’re going to stay in it for the

long haul and maybe wait for that 10-year IPO event.

Mr. MCHENRY. Mr. Koester, would that be appealing?

Mr. KOESTER. Absolutely. I think that it’s appealing for employees to have that liquidity early.

I also think there’s also a side benefit that’s not often discussed,

besides employees. It’s that investors in my business are venture

capitalists who have an obligation to get a return. And obviously

if they can’t get that return over time, they’re slow to reinvest that

money again into businesses.

So the fact that they can gain liquidity earlier in the process,

from 10 years down to 5 years potentially, allows them to have two

cracks at the apple and potentially invest multiple times, reap the

rewards, and double-down essentially on early stage investments.

Mr. MCHENRY. Mr. Silbert, this 500 shareholder rule, as the

chair of the SEC called it, arbitrary number, can you discuss that?

Mr. SILBERT. Well, it was established I guess in the sixties, and

it worked for decades. But if you look at that chart, you know we’re

now at a point where it is not working any more. And what the

numbers should become, should there be a number, I don’t know.

But what we do know is it’s a major issue.

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As I mentioned in my remarks, we certainly support eliminating

the employees from the account, we certainly support eliminating

credit investors from the accounts, but we would also like to see

that analysis that’s going to be prepared.

Mr. MCHENRY. This limits access to capital for these small businesses and it limits—Mr. Koester, it eliminates your ability to access capital and grow your company and grow your head count too,

right?

Mr. KOESTER. Yes. I think it has a slow down. I think on the

charts not shown up there is the decrease in venture capital investment, and I think that’s also attributable to the lack of liquidity

in the IPO markets. That I think has a downstream effect that limits the early stage investment rather than just the late-stage IPO

investment. It is a double-edged sword, decreasing employment levels as well.

Mr. MCHENRY. It’s important—this chart is interesting to look at

in the terms of the number of IPOs.

I think many Americans misunderstand what the IPO is about.

It’s in order to get capital injected into your company, right, and

to free up maybe some of the capital you’ve got invested in. But

long term, it’s really about accessing capital for that company so

they can grow jobs and actually grow larger. That’s the reason why

you have shareholders who want to participate.

Mr. Macey, we discussed the 500 shareholder caps, your views on

it, and sort of where you’d like to see this thing go.

Mr. MACEY. Well, certainly I just want to make two points about

it.

First, I am against the 500 share cap. I think that particularly

with respect to employees, it provides a real curb on the ability of

companies to provide incentives different than cash compensation.

The point I want to make, though, that hasn’t been made yet is

simply to observe that there is a very close correlation between the

500 shareholder rule and a whole bunch of other rules. So, for example, we heard this morning something the SEC is very proud

of—and I am not opposed to it—is there’s a reform of a couple of

years ago to say that employee stock options are exempt from this

500 count, so you can give all the options you want without coming

under the 500 count norm.

But what I don’t think the SEC fully grasps as it relates to the

500 shareholder rule is, it doesn’t do me very much good to have

an option to buy a share stock if that share stock is not publicly

traded, or if there are big impediments to that company making an

IPO.

Similarly, with respect to the 500 shareholder rule, let’s say we

exempt employees, we raise the number to some sensible level, we

need to go beyond that to really help the U.S. economy create jobs,

because we need to—we need to make that stock grant, just like

the Oxley grant, worth something to the employees. And it becomes

worth something the more liquidity it has, the more access the

company has to the public offering market.

So I think the 500 shareholder rule is a terrific step in the right

direction, but it’s almost a cruel joke if you say to an employee,

Here are your options or here are your shares, but it’s too risky for

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us to go to public, so these shares are going to be restricted forever.

That’s not a great deal in my view.

Chairman ISSA. I now recognize the gentleman from Tennessee,

Mr. Cooper.

Mr. COOPER. I am very open to the idea of changing the general

solicitation rules and also the 500-person limit. I do think, though,

that this hearing, as good as it has been, has only really highlighted two pieces of the puzzle, and it is a very large puzzle.

Having been an investment banker, I think that the structure in

the investment banking industry is also very important to this.

There have been a few glancing blows dealt to that topic, but the

fact that analysts find it difficult to make a living following stocks,

especially smaller stocks, is a fundamental problem. That also implies that the retail investor needs the help of an analyst, and

ideally the help of an honest analyst that won’t just lose the stocks

that company happens to be underwriting at the time.

There are many issues in the structure of the investment banking field. One of them is the fact that proprietary trading has become so lucrative that it makes pretty much all fee-based services

pale in comparison. And then that sets up a conflict of interest

issue if they’re in fact betting against the issue of their own client.

So that’s a whole segment of the problem.

Another problem is many retail investors have the idea that all

IPOs are automatically good. Well, many of them are disastrous.

Many of them are a search for the dumbest dollars they can find

in America. Overly valuing a company and leaving the poor retail

investor holding the bag, perhaps has been seduced by an overly

optimistic analyst report.

So the search for the informed investor is truly a difficult task.

We saw this in one of the least heralded features of our recent session, money market funds. Most everybody has a brokerage account, and who knew? Who knew, whether the investors were accredited or not, the risk of breaking a buck on those funds? And

I think the government had to step in with—perhaps the chairman

can remind me—wasn’t it a $3 trillion seat-of-your-pants guarantee? Which may have one of the most fundamental features of

the bailout. Basically everybody in America was bailed out and no

one wants to talk about that.

There are other features to that puzzle, but that should strike

the heart of every investor out there. Even, I imagine, some university endowment funds didn’t really know.

So it seems to me that one of the core issues here, since really

money, according to most investment bankers, really isn’t the

issue. It is a question of company valuation. And who wants to acknowledge that? And the phrase in the business is, ‘‘You don’t bet

on the horse, you bet on the jockey.’’ And the real shortage is not

money, it’s management talent and experience. But these are some

of the unacknowledged puzzle pieces that are out there.

So I commend the chairman for holding this hearing. I know that

he’s founded a very successful company in his own right. But getting this right for the whole country is really going to be a challenge, because financial literacy probably has not increased over

the years. And I am not sure that television advertising helps us

a whole lot in understanding this.

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So I shudder at the thought of some of these general solicitations

that could be amazingly appealing but really just be hiding an investment that’s not necessarily going to grow to the sky.

So I commend the expertise of the panel. This is indeed a deep

issue, and you should be comforted in the fact that this committee

has no legislative jurisdiction. It’s really just a debating society.

Chairman ISSA. Would the gentleman yield?

Mr. COOPER. I’d be delighted.

Chairman ISSA. We do have a little bit. We do regulate the post

office and we’ve got the District of Columbia.

I want to thank the gentleman. As you know, we didn’t come into

this hearing with pre-determination. Certainly Chairwoman Shapiro was very quick to say she knows some of these reforms have

to happen, and it is mostly her mandate, and I think it’s one of the

reasons we want to have the encouragement of the SEC and support, while recognizing that most of it is for her to do and not in

fact for us to do.

With that, we recognize the gentleman from South Carolina, Mr.

Gowdy for 5 minutes.

Mr. GOWDY. Thank you, Mr. Chairman.

This would be for the whole panel. If you care to comment on the

efficacy or constitutionality of the general solicitation ban, I’d like

to hear your perspectives.

Not all at once.

Mr. RAHN. Well, it’s easy for me to do, because I am not a lawyer. But I can read the English——

Mr. GOWDY. Sounds like you’re bragging.

Mr. RAHN. Yes, yes. I can read the English language, however.

And the First Amendment to me is very clear, and it seems to me

there is a definite conflict there; and given the conflict, I prefer to

go with the Constitution.

Mr. GOWDY. Mr. Macey, you look like you were gearing up to respond?

Mr. MACEY. I was winding up there a little bit. So there are two

kinds of stylized facts around this issue on either side. One is, I

think Congressman Issa made this point, that it’s absolutely nonsensical that a pharmaceutical company has the right to advertise

on television a prescription medication, and a company can’t make

a similar solicitation for securities. When you get off the airplane

in Europe, you see that all the time.

The problem that lawyers have, I think on the other hand, with

the issue that you raise about the general solicitation, is that if we

start putting SEC rules, Congressman, under scrutiny from a First

Amendment constitutional lens, we open up a real Pandora’s box.

Think about the Securities Act of 1933 and registration statement.

That’s a prior restraint on the press to say to a company, You can’t

send this document out to investors without going to jail until the

Division of Corporation of Finance of the SEC says it’s OK. That’s

also a First Amendment violation—in fact, something that’s very

commonly said around law schools—I don’t think people have really—it’s quite amusing—is that one thing one learns in law school

is an unwritten rule of the United States is that the First Amendment doesn’t apply to the SEC.

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I was kind of astonished, actually. The best part of this hearing

by far was when the Chair of the SEC said, Well, you know, maybe

this is unconstitutional, but I have to uphold the law, and so I am

going to ignore the Constitution where it conflicts with the law.

That’s not the way I learned kind of a hierarchy of documents in

our system. That’s the world we live in.

Mr. GOWDY. There certainly is precedent for executive branch entities not following laws that they believe are unconstitutional,

even recent examples of it.

Mr. MACEY. I think that you have a moral obligation, if not a

legal obligation, if you’re the head of a U.S. administrative agency,

to resign rather than enforce a law that you actually believe is unconstitutional.

Mr. GOWDY. Let me move to one other area and if I have any

time left, I will yield to the chairman, who is an expert in this area

and I clearly am not.

I think it may have been you, Dr. Macey, or you, Dr. Rahn, that

commented on the perverse incentive to go after big fines because

that’s the way we judge success. And I tend to judge enforcement

more by active prison sentences than I do the size of the fine. So

accepting that the SEC is not the U.S. Attorneys Office, are you

satisfied with the level of criminal prosecutions or fraud; and if not,

what can be done about it?

Mr. MACEY. I think that if one looks at for example financial

fraud, particularly insider trading prosecutions, I think that the

problem that the government tends to have is, just as a general

rule, is that they overcharge. That is to say, I think there are current prosecutions that I could cite as examples, but there are

many, many examples that if somebody has done three things that

involve really criminal fraud, I’ve never understood why the government would charge them with a hundred count indictment,

where when you get to the number 97, 98, 99, 100, these are pretty

big stretches as to whether the fraud applies to that conduct.

Whereas I do think where people are actually ripping people off,

let’s go after them.

So that’s one big problem that I have, that for what I think are

structural bureaucratic reasons, there are incentives that the SEC

has to say that everything is illegal unless we say it’s legal. I think

it would be more helpful if they said, Where you’ve actually really

committed fraud here in these situations where we know we have,

because the structure of a criminal trial is once the criminal defense attorneys cast doubt on a few of these items, then the government can’t come in and say, Oh well, we weren’t really serious

about charging those. Here’s what we really want the guy to go to

jail for.

So I think we need to be more selective and go after real fraud.

Another thing is who are we really protecting? Somebody mentioned in the first panel, Gee, isn’t this great that we fined Goldman Sachs so much money with respect to this CDO scandal and

the way it was selling structured products to investors? I always

like to remind my students that the people who were ripped off in

that case were two financial institutions. One of them was IKB

Deutch Industria Bank, a Dusseldorf, Germany, headquarterd

bank. And the other was ABNM Amro, a giant financial institution

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in the Netherlands. This prosecution is not helping the U.S. small

investors, not even helping U.S. investors; Certainly not helping

small investors.

Mr. GOWDY. I would disagree with you, but when you rob another poor person we call it common-law robbery, and when you

rob a rich company, we call it something else. And if for no other

reason other than to just prop up what’s left of public trust in our

criminal justice system, I would just like to see more suits prosecuted and fewer folks who don’t have the means to defend themselves.

Mr. MACEY. I agree. My point is simply I’d like to see more suits

brought where the person who is being ripped off is not ABNM

Amro. There are plenty of small investors who are being ripped off

as well, and I’d rather have my tax dollars going to protect those

guys. But I agree with you in general, more is better.

Mr. GOWDY. Thank you, Mr. Chairman.

Chairman ISSA. I thank the gentleman.

For a change, I am going to go last, not first. So I yield myself

5 minutes.

Mr. Silbert, the companies that are on your exchange, what’s the

number, how many of them are audited?

Mr. SILBERT. A hundred percent of the companies are audited.

Chairman ISSA. So they have the same audit standards as public

companies, right? Let me rephrase that. They have audits as required for public companies.

Mr. SILBERT. Correct. The auditors tend to be the Big Four accounting firms.

Chairman ISSA. I realize if you want Goldman to take your public offering, the first thing you have to do is go to what used to be

kind of the Big 10, the Big 8, the Big 6, and now the Big 4, which

is becoming interesting since one of them has to give you a credit

or, sorry, a debt evaluation. Another one can do something else.

Pretty soon you run out of them able to do anything for you.

So whether you use Pricewaterhouse Coopers or a regional audit

firm, the audit standard for Gap is essentially the same, isn’t it?

Mr. SILBERT. Correct.

Chairman ISSA. So the standard for an accounting firm standing

behind a qualified opinion is going to be the same for these companies, whether they’re public or private; isn’t that right?

Mr. SILBERT. Correct.

Chairman ISSA. Let me go through that sort of analogy.

We talked about the First Amendment. Dr. Rahn, you were pretty straightforward. You are a nonlawyer like myself. You read this

very short chapter, written long ago. You know, it shall not be

abridged, boom, move on. But let me ask you a series of questions

just so we understand the nuances.

I’ve got an audited—a public accounting firm has done my audit.

Right now if I print it in the newspaper or I give it to one of my

investors and they post it on the Internet, I’ve committed no violation, right?

Mr. RAHN. As far as I know.

Chairman ISSA. But if I send it out to a group of potential investors, I’ve committed a violation, right?

Mr. RAHN. Appears to be.

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Chairman ISSA. So if I send it out to just those people who I

know could legally invest, I’ve committed a violation, while in fact

if I give it to the New York Times or somebody posts it on the

Internet—it’s fine on my Facebook, right? I just can’t drive people

to my Facebook.

Mr. RAHN. You point out the absurdity of what we’re doing.

Chairman ISSA. So when we talk about the First Amendment,

and it sounds very lofty and when you go to the Constitution, you

sometimes lose the C–SPAN audience because they say, Oh, well,

that’s not a recent document. The recent document of posting something on Facebook being OK, while not being able to go to investors

of record who do this kind of investing repeatedly and sending

them information soliciting them currently is not available.

Let us go one step further, though.

If JP Morgan and Goldman are being paid by my firm to go out

and find people that’s OK, right? They can go solicit the people who

have accounts with them and they already know they can be qualified, right.

Mr. RAHN. Yes.

Chairman ISSA. All the major firms have—and I am getting

‘‘yeses.’’ Let the record indicate those are all yeses. She’s very good

but she doesn’t hear pantomime.

Let’s understand that right now the current status quo allows

large brokerage firms to make these markets. And, Mr. Silbert,

you’re larger than you once were, but you’re not a conventional brokerage firm. You don’t have a whole bunch of—and correct me if

I’m wrong—you don’t have a whole bunch of people paid commissions to go make these transactions, right?

Mr. SILBERT. So we do not have a distribution network like in

Goldman Sachs; that is correct.

Chairman ISSA. But right now for Goldman and JP Morgan and

many other—we always use Goldman because of their size, but we

could use Bank of America, Merrill Lynch, too—they can in fact

make these markets, have hundreds of investors behind a single

name, and it’s OK; it’s just not OK for me to post to my Facebook

and drive people to go look at it and consider investing, even if

they’re qualified. Is that the status quo we’re dealing with?

Mr. KOESTER. And as a former startup lawyer, it is one of those

rules that’s oftentimes mystical to the individual who’s doing it.

But there’s a lot of different ways that people wind up kind of finding magical ways to solicit without soliciting.

Chairman ISSA. Now, the chairman when she was here was unable to answer hypothetical questions for good reasons. She’s doing

a due diligence and I commend her for starting this process. But

you all are here to answer the hypothetical. So I hope you knew

that was the reason.

Hypothetically, if the SEC lifts the cap on the 500/499 on all

those who are in fact employees receiving options and those options

maturing, because that ultimately makes them stockholders, that’s

OK with all of you; is that right?

[All witnesses answer ‘‘yes’’ together.]

Chairman ISSA. And if they take—and hypothetically the SEC

takes a standard that they oversee; in other words, an SEC list of

qualified investors, and they lift the cap on that list of investors,

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those who either with the help of a JP Morgan or Goldman or

somebody, or on their own fill out a form and show that they in

fact should be not part of a limit protection in this kind of investment, and she takes the cap off, is that OK with all of you?

[All witnesses answer ‘‘yes’’ together.]

Chairman ISSA. So as we close, and the ranking member may

want another round, but as I close, we have two major items

here—the employee who has a benefit limited unless we take the

cap off for them, and the qualified investor who either is limited

because there is only 499 option, or is unlimited because they are

a conduit through. If we allow for that direct and the solicitation

of those registered investors, that’s good with everyone on this

panel; is that right?

[All witnesses answer ‘‘yes’’ together.]

Chairman ISSA. I’ll take that as a ‘‘yes’’ from everyone. I hope

that as the chairman considers all of this, that you’re all listened

to.

Would the ranking member like another round?

Mr. CUMMINGS. No.

Chairman ISSA. With that, as we said earlier, for 7 days the

record will remain open, that includes all of you, to revise and extend. I thank all of you for your testimony.

We stand adjourned.

[Whereupon, at 3:20 p.m., the committee was adjourned.]

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