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Patching a Hole in the JOBS Act: How and Why to Rewrite the Rules that Require Firms to Make Periodic Disclosures

63 Pages Posted: 25 Jun 2012 Last revised: 29 Jan 2017

Michael D. Guttentag

Loyola Marymount University

Date Written: July 23, 2012

Abstract

This Article considers if or when firms in the United States should be required to comply with federal periodic disclosure requirements. Such a consideration is timely. Provisions in the Jumpstart Our Business Startups Act of 2012 have made it much easier for firms to avoid federal periodic disclosure obligations, but these provisions were enacted based upon a virtually non-existent legislative record and upended rules established only after careful consideration almost fifty years earlier.

Determining which firms should be required to comply with federal periodic disclosure requirements is best done in the context of a broader understanding of the history and economics of periodic disclosure regulation. This Article provides such an understanding. The history of periodic disclosure regulation in the United States is traced back to its origins in the eighteenth century, and the economic analysis of periodic disclosure regulation is updated and refined to incorporate recent findings.

Building on this historical and economic understanding of periodic disclosure regulation, I identify a flaw in the underlying structure of the rules currently used to determine which firms must make periodic disclosures. To rectify this structural problem, I suggest that firms with a market capitalization of less than $35 million or fewer than 100 beneficial shareholders be granted an automatic exemption from periodic disclosure requirements. All other firms should be provided a choice between: 1) complying with federal periodic disclosure obligations, or 2) implementing measures that would mitigate the need for periodic disclosure regulation, such as restricting share tradability or committing to an acceptable alternative disclosure regime.

Suggested Citation

Guttentag, Michael D., Patching a Hole in the JOBS Act: How and Why to Rewrite the Rules that Require Firms to Make Periodic Disclosures (July 23, 2012). Indiana Law Journal, Vol. 88, No. 1, 2013; Loyola-LA Legal Studies Paper No. 2012-19; UCLA School of Law, Law-Econ Research Paper No. 12-12. Available at SSRN: https://ssrn.com/abstract=2091874

Michael Guttentag (Contact Author)

Loyola Marymount University ( email )

7900 Loyola Boulevard
Los Angeles, CA 90045
United States

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