SEC Adopts Final Rule Relating to Security-Based Swap Communications: Publication or Distribution of Certain Communications Involving Security-Based Swaps Will Not Be Deemed an Offer for Purposes of Section 5 of the Securities Act

Sullivan & Cromwell LLP - January 17, 2018
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On January 5, 2018, the Securities and Exchange Commission adopted Rule 135d under the Securities Act of 1933 providing that the following communications will not be deemed “offers” for purposes of Section 5 of the Securities Act:

  • price quotes relating to security-based swaps that may be purchased only by “eligible contract participants” and are traded or processed on or through a national securities exchange or a security-based swap execution facility; and
  • regular course research reports that discuss security-based swaps or the issuers thereof if the security-based swaps may be purchased only by “eligible contract participants” and the reports do not represent the initiation (or reinitiation) of publication of reports regarding such issuer or its securities.
The Final Rule became effective on January 16, 2018, the date of its publication in the Federal Register.