What SEC Disclosure Is Required By Section 17(b) For Investor Relations Firms?
Section 17(b) of the Securities Act of 1933 requires anyone who advertises a stock, even if he does not purport to offer the security for sale to disclose the “consideration received or to be received, directly or indirectly, from an issuer, underwriter, or dealer, the receipt, whether past or prospective, of such consideration and the amount thereof.”We are often contacted by investors, stock promoters and investor relations firms about the disclosures that must be provided in promotional websites, emails and other investor relations materials.
Section 17(b) disclosure is not sufficient to satisfy disclosure obligations under all circumstances. Investor relations firms must also be aware of the requirements of the CAN-SPAM Act and SEC prohibitions against stock scalping activity. For example, a 17(b) disclaimer will not protect a promoter who is engaged in scalping activity, spam or one who secretly sends investor relations materials to different groups of recipients at varying times. Investor relations firm should exercise extreme caution if being paid from the proceeds of any third party sales of the securities subject to the promotion and should disclose this fact in promotional materials. The anti-fraud provisions of the federal securities laws require that investors be on an even playing field when promotional materials are provided to them. This requires that promoters use fact-specific disclosures for each campaign. A boilerplate disclaimer is simply not sufficient to provide investors with the fact-specific disclosures required.
As a courtesy to all the market participants who follow our blog, we offer a sample of an investor relations disclaimer covering a range of activities. It should serve only as a starting point for drafting the fact-specific disclosures required under the securities laws.
INVESTORS SHOULD READ THIS DISCLAIMER
* Remember: When the Campaign Ends, the Stock of the Profiled Issuers Will Crash.
Who are we and what do we do?
We are paid advertisers, also known as stock touts or stock promoters, who disseminate favorable information (the “Information”) about publicly traded companies (the “Profiled Issuers”).
How is the Information published?
We publish the Information on our Website, in newsletters, audio services, live interviews, featured “research” reports, on message boards and in email communications for specific time periods that are agreed upon between us and the Profiled Issuer or third party paying us.
Our publication of the Information is known as a “Campaign”.
Will everyone receive the Information at the same time?
No. The Information may be sent to potential investors at different times that are minutes, hours, days or even weeks apart.
How is a potential investor impacted if he receives the Information later than other investors?
Typically, the trading volume and price of a Profiled Issuer’s securities increases after the Information is provided to the first group of investors. Therefore, the later an investor receives the Information, the more likely it is that he will suffer increased trading losses if he purchases the securities of a Profiled Issuer.
What will happen to the shares that we hold during the Campaign?
We will sell the shares we hold while we tell investors to purchase during the Campaign.
What will happen when the Campaign ends?
Most, if not all, of the Profiled Issuers are penny stocks that are illiquid and whose securities are subject to wide fluctuations in trading price and volume. During the Campaign the trading volume and price of the securities of each Profiled Issuer will likely increase significantly. When the Campaign ends, the volume and price of the Profiled Issuer will likely decrease dramatically. As a result, investors who purchase during the Campaign and hold shares of the Profiled Issuer when the Campaign ends will probably lose most, if not all, of their investment.
Why do we publish only favorable Information?
We only publish favorable information because we are compensated to publish only favorable information.
Why don’t we publish negative Information?
We don’t publish negative information because we are not paid to publish negative information. We are paid to publish only favorable information.
Is the Information complete, accurate, truthful or reliable?
No. The Information is a snapshot that provides only positive information about the Profiled Issuers. The Information consists of only positive content. We do not and will not publish any negative information about the Profiled Issuers; accordingly, investors should consider the Information to be one-sided and not balanced, complete, accurate, truthful or reliable.
What we do not do?
We do not publish negative information about the Profiled Issuers. We do not verify or confirm any portion of the Information. We do not conduct any due diligence, nor do we research any aspect of the Information including the completeness, accuracy, truthfulness or reliability of the Information. We do not review the Profiled Issuers’ financial condition, operations, business model, management or risks involved in the Profiled Issuer’s business or an investment in a Profiled Issuer’s securities.
Where does the Information come from?
The Information is provided to us by the Profiled Issuers and/or the person who hires us. We may also obtain the Information from publicly available sources such as the OTC Markets, Google, NASDAQ, NYSE, the Securities and Exchange Commission’s Edgar database or other available public sources.
If we say we make “stock picks,” are those picks our own?
No, they are not. We are compensated to advertise the securities we are told to advertise.
What will happen if an investor relies on the Information?
If an investor relies on the Information in making an investment decision it is highly probable that the investor will lose most, if not all, of his or her investment. Investors should not rely on the Information to make an investment decision.
Who pays us to publish the Information?
The source of our compensation varies depending upon the particular circumstances of the Campaign. We are compensated by the Profiled Issuers, third party shareholders and other parties related to the Profiled Issuers such as officers and/or directors who will derive a financial or other benefit from an increase in the trading price and/or volume of a Profiled Issuer’s securities.
The nature and amount of compensation we receive for publishing the Information about each Profiled Issuer and our ownership of each Profiled Issuer is set forth below under the heading captioned, “What we are compensated”.
What warranties do we make about the Information?
None. We make no warranty or representation about the Information, including its completeness, accuracy, truthfulness or reliability and we disclaim, expressly and implicitly, all warranties of any kind, including whether the Information is complete, accurate, truthful, or reliable and as such, your use of the Information is at your own risk. The Information is provided as is without limitation.
What we are not.
We are not and do not act in the capacity of any of the following; as such, you should not construe our activities as involving any of the following:
● An independent adviser or consultant;
● A fortune teller;
● An investment adviser or an entity engaging in activities that would be deemed to be providing investment advice that requires registration either at the federal or state level;
● A broker-dealer or an individual acting in the capacity of a registered representative or broker;
● A stock picker;
● A securities trading expert;
● A securities researcher or analyst;
● A financial planner or one who engages in financial planning;
● A provider of stock recommendations;
● A provider of advice about buy, sell or hold recommendations as to specific securities; or
● An agent offering or securities for sale or soliciting their purchase.
Are risks in this disclaimer the only risks investors should be aware of?
No. There are numerous risks associated with each Profiled Issuer and investors should undertake a full review of each Profiled Issuer with the assistance of their financial, legal, and tax advisers prior to purchasing the securities of any Profiled Issuer.
What conflicts of interest do we have in publishing the Information?
We are not objective or independent and have multiple conflicts of interest. The Profiled Issuers and parties hiring us have conflicts of interest.
What will happen to the shares that we hold during the Campaign?
We will sell the shares we hold while we tell investors to purchase.
Our publication of the Information involves actual and material conflicts of interest including but not limited to the following:
● We receive monetary and/or securities compensation in exchange for publishing the (favorable) Information about the Profiled Issuers;
● We do not publish any negative information whatsoever about the Profiled Issuers;
● We may own a Profiled Issuer’s securities that we acquired from the Profiled Issuer, third parties or from our own open market purchases before, during or after the Campaign and we may sell these securities during the Campaign while publishing the (favorable) information that instructs investors to purchase. Our selling of a Profiled Issuer’s securities will likely cause investors to suffer losses;
● A short time after we acquire a Profiled Issuer’s securities, we may publish the (favorable) Information about the Profiled Issuer advising others, including you, to purchase; and while doing so, we may sell the Profiled Issuer’s securities we acquired during our public dissemination of the Information causing us to profit while you suffer a loss;
● Parties holding a Profiled Issuer’s securities, including those who engage our services and/or compensate us, will sell their shares of the Profiled Issuer while we are publishing the (favorable) Information.
Who is responsible if an investor relies on the Information?
The investor. We are not responsible or liable for any person’s use of the Information or any success or failure that is directly or indirectly related to such person’s use of the Information because we have specifically stated that the information is not reliable and should not be relied upon for any purpose. We are not responsible for omissions or errors in the Information and we are not responsible for actions taken by any person who relies upon the Information.
What do we urge potential investors to do?
We urge Investors to conduct their own in-depth investigation of the Profiled Issuers with the assistance of their legal, tax and investment advisers. An investor’s review of the Information should include but not be limited to the Profiled Issuer’s financial condition, operations, management, products or services, trends in the industry and risks that may be material to the profiled Issuer’s business and other information he and his advisers deem material to an investment decision. An investor’s review should include, but not be limited to a review of available public sources and information received directly from the Profiled Issuers or from websites such as Google, OTC Markets, NASDAQ, NYSE, www.sec.gov or other available public sources.
Why is this Disclaimer being provided?
We are providing you with this disclaimer because we are publishing advertisements about penny stocks. Because we are paid to disseminate the Information to the public about securities, we are required by the securities laws including Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 thereunder, and Section 17(b) of the Securities Act of 1933, as amended (the “Securities Act”), to specifically disclose our compensation as well as other important information, This information includes that we may hold, as well as purchase and sell, the securities of a Profiled Issuer before, during and after we publish favorable Information about the Profiled Issuer. We may urge investors to purchase the securities of a Profiled Issuer while we sell our own shares.
The anti-fraud provisions of federal and state securities laws require us to inform you that we may engage in buying and selling of Profiled Issuer’s securities before, during and after the Campaigns.
What are other risks that investors should be aware of?
Any investment in the Profiled Issuers involves a high degree of risk and uncertainty. The securities may be subject to extreme volume and price volatility, especially during the Campaigns. Favorable past performance of a Profiled Issuer does not guarantee future results. If you purchase the securities of the Profiled Issuers, you should be prepared to lose your entire investment. Some of the risks involved in purchasing securities of the Profiled Issuers include, but are not limited to the risks stated below.
● We do not endorse, independently verify or assert the truthfulness, completeness, accuracy or reliability of the Information. We conduct no due diligence or investigation whatsoever of the Information or the Profiled Issuers and we do not receive any verification from the Profiled Issuer regarding the Information we disseminate.
● If we publish any percentage gain of a Profiled Issuer from the previous day close in the Information, it is not and should not be construed as an indication that the future stock price or future operational results will reflect gains or otherwise prove to be advantageous to your investment.
● The Information may contain statements asserting that a Profiled Issuer’s stock price has increased over a certain period of time which may reflect an arbitrary period of time, and is not predictive or of any analytical quality; as such, you should not rely upon the (favorable) Information in your analysis of the present or future potential of a Profiled Issuer or its securities.
● The Information should not be interpreted in any way, shape, form or manner whatsoever as an indication of the Profiled Issuer’s future stock price or future financial performance.
● You may encounter difficulties determining what, if any, portions of the Information are material or non-material, making it all the more imperative that you conduct your own independent investigation of the Profiled Issuer and its securities with the assistance of your legal, tax and financial advisor.
● We or other stock promoters may receive free trading shares as compensation or we may acquire such shares in open market transactions before and during the Campaigns, and we may sell the shares we acquire at any time, even during the Campaigns while publishing the Favorable Information. When we sell the shares of the Profiled Issuers that we hold, the price at which investors can sell their shares will dramatically decrease and will likely cause investors to suffer trading losses.
● We may sell securities of the Profiled Issuers for less than target prices set forth in the Information, and we may profit by selling our securities during the Campaigns while investors encounter losses.
● When we acquire, purchase or sell the securities of the Profiled Issuers, it may (a) cause significant volatility in the Profiled Issuer’s securities; (b) cause temporary but unrealistic increases in volume and price of the Profiled Issuer’s securities; (c) if selling, cause the Profiled Issuer’s stock price to decline dramatically; and (d) permit us to make substantial profits while investors who purchase during the Campaign experience significant losses.
● The securities of the Profiled Issuers are high risk, unstable, unpredictable and illiquid which may make it difficult for investors to sell their securities of the Profiled Issuers.
● If we are compensated in improperly free trading securities of the Profiled Issuers, either directly or indirectly from persons who claim to be non-affiliates of such Profiled Issuer, we and the Profiled Issuer or third party could be subject to SEC Enforcement action, including allegations of an illegal distribution in violation of Section 5(a) and 5(c) of the Securities Act.
● We may hire third party service providers and stock promoters to electronically disseminate live news regarding the Profiled Issuers, yet we have no control over the content of and do not verify the information that the Profiled Issuers and/or third party service providers publish. These third party service providers are likely compensated for providing positive information about the Issuer and fail to disclose their compensation to you.
● If a Profiled Issuer is an SEC reporting company, it could be delinquent (not current) in its periodic reporting obligations (i.e., in its quarterly and annual reports), or if it is an OTC Markets Pink Sheet quoted company, it may be delinquent in its Pink Sheet reporting obligations, which may result in OTC Markets posting a negative legend pertaining to the Profiled Issuer at www.otcmarkets.com, as follows: (i) “Limited Information” for companies with financial reporting problems, economic distress, or that are unwilling to file required reports with the Pink Sheets; (ii) “No Information,” which characterizes companies that are unable or unwilling to provide any disclosure to the public markets, to the SEC or the Pink Sheets; and (iii) “Caveat Emptor,” signifying buyers should be aware that there is a public interest concern associated with a company’s illegal spam campaign, questionable stock promotion, known investigation of a company’s fraudulent activity or its insiders, regulatory suspensions or disruptive corporate actions.
● If the Information states that a Profiled Issuer’s securities are consistent with the future economic trends or even if your independent research indicates that, you should be aware that economic trends have their own limitations, including: (a) that economic trends or predictions may be speculative; (b) consumers, producers, investors, borrowers, lenders and government may react in unforeseen ways and be affected by behavioral biases that we are unable to predict; (c) human and social factors may outweigh future economic trends that we state may or will occur; (d) clear cut economic predictions have their limitations in that they do not account for the fundamental uncertainty in economic life, as well as ordinary life; (e) economic trends may be disrupted by sudden jumps, disruptions or other factors that are not accounted for in economic trends analysis; in other words, past or present data predicting future economic trends may become irrelevant in light of new circumstances and situations in which uncertainty becomes reality rather than predicted economic outcome; or (f) if the trend predicted involves a single result, it ignores other scenarios that may be crucial to make a decision in the event of unknown contingencies.
● The Information is presented only as a brief snapshot of the Profiled Issuer and should only be used, at most, and if at all, as a starting point for you to conduct a thorough investigation of the Profiled Issuer and its securities. You should consult your financial, legal or other adviser(s) and avail yourself of the filings and information that may be accessed at www.sec.gov, www.otcmarkets.com or other electronic media, including: (a) reviewing SEC periodic reports (Forms 10-Q and 10-K), reports of material events (Form 8-K), insider reports (Forms 3, 4, 5 and Schedule 13D); (b) reviewing Information and Disclosure Statements and unaudited financial reports filed with the OTCMarkets.com; (c) obtaining and reviewing publicly available information contained in commonly known search engines such as Google; and (d) consulting investment guides at www.sec.gov and www.finra.org. You should always be cognizant that the Profiled Issuers may not be current in their reporting obligations with the SEC and the OTC Markets and/or have negative legends and designations at otcmarkets.com.
What we were paid to advertise the Profiled Issuers.
The details of our compensation and the period of the Campaign is set forth in the Chart below.
| Name of Issuer &Ticker Symbol | Amount & Form of Compensation | Who Paid for the Campaign & Position with Company if any | Period of Campaign |
What securities of the Profiled Issuers do we hold?
The positions we hold of the Profiled Issuer are set forth below. We plan to sell these securities during the Campaign.
| Name of Issuer &Ticker Symbol | Number of Shares We or our Affiliates Hold | Price We Paid Per Share | Date We Purchased |
We at Hamilton & Associates hope investors who read promotional literature will consider our suggestions and use the disclaimer above as a starting point for drafting an adequate and complete disclaimer, and will use their final disclaimer on all websites, email blasts, research reports and other advertisements for securities.
And Don’t Forget – When the Campaign ends, the stock price of the Profiled Issuers will decline.
For further information about this article, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202N, Boca Raton, Florida, (561) 416-8956, [email protected] or visit www.securitieslawyer101.com. This blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.
Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.SecuritiesLawyer101.com
