The Big Eighties: What the Corp Fin Staff Won’t Tell You

The Eighties was an amazing decade for fashion, TV and music. Who can forget such gems as the Members Only jacket, MacGyver and A Flock of Seagulls. But in our corner of the world, the Eighties was also the decade that gave us Release No. 33-6253, dated October 28, 1980, which summarized the Division of Corporation Finance’s approach to certain interpretive guidance.

 

 

Admittedly, the Release pre-dates the SEC’s website, where you can find interpretive releases, no-action letters and C&DIs. You can also find information on requesting a no-action or interpretive letter and an online form for submitting interpretive questions.

That said, the Release is still very much alive and well in most respects, especially for the insight into topics on which the SEC Staff has said they will not provide interpretive guidance. For our purposes, these topics include questions about:

  • hypothetical situations;
  • integration of multiple offerings;
  • affiliate or control status determinations;
  • propriety of removing restrictive legends; and
  • availability of the Section 4(a)(2) or 4(a)(1) exemptions.

This list is not set in stone – with appropriate justification, the SEC Staff might entertain a hypothetical fact pattern, for example. However, the SEC Staff still consistently refuses to address questions about affiliate status or the removal of legends.