MSRB NOTICE 2005-59 (DECEMBER 7, 2005)

MSRB FILES AMENDMENT WITH SEC RELATING TO PREVIOUSLY FILED INTERPRETIVE NOTICE ON THE DEFINITION OF SOLICITATION UNDER RULES G-37 AND G-38

On December 7, 2005, the Municipal Securities Rulemaking Board (the “MSRB”) filed with the Securities and Exchange Commission (the “SEC”) an amendment to a previously filed proposed rule change consisting of an interpretive notice relating to the definition of “solicitation” for purposes of Rules G-37 and G-38.[1]  The definition of solicitation is important for purposes of determining whether broker, dealer or municipal securities dealer (“dealer”) payments to non-affiliated persons of the dealer would be prohibited under Rule G-38, on solicitation of municipal securities business.  In addition, the definition is central to determining whether communications by dealer personnel would result in such personnel being considered municipal finance professionals of the dealer for purposes of Rule G-37, on political contributions and prohibitions on municipal securities business.

The original interpretive notice stated that intent is a necessary element in determining whether a communication is a solicitation.  Based on conversations with SEC staff, the MSRB filed this amendment to clarify that the central element in determining whether a communication is a solicitation is whether the communication occurs with the purpose of obtaining or retaining municipal securities business.[2]  To avoid potential ambiguity, the amended and restated interpretive notice replaces references to “intent” with terminology that more closely tracts the language of the definition of solicitation in several portions of the notice.

In addition, the original interpretive notice included numerous examples of circumstances where a communication may or may not be considered a solicitation, from which it was clear that a communication could be inferred to have been made for the purposes of obtaining or retaining municipal securities business based on the specific facts and circumstances of such communication.  The amended and restated interpretive notice makes this standard explicit by providing that, as a general proposition, a communication made under circumstances reasonably calculated to obtain or retain municipal securities business could be considered a solicitation unless the circumstances indicate otherwise.

In connection with communications by non-affiliated professionals, the original interpretive notice stated that, so long as non-affiliated persons of a dealer providing legal, accounting, engineering or other professional services are not being paid directly or indirectly for their solicitation activities (i.e., they are paid solely for providing legal, accounting, engineering or other professional services for the business), they would not become subject to Rule G-38.  The original interpretive notice then provided an example of a joint venture created by a dealer with other professionals seeking to engage in municipal securities business, noting that such professionals would not be viewed as soliciting on behalf of the dealer if they were seeking a bona fide role on the financing, so long as no payments were made by or on behalf of the dealer to such professionals separate from the payments they receive for actual professional services rendered in connection with the issue.

The example of a joint venture was not intended to establish a standard distinct from the general standard regarding non-affiliated professionals but rather to illustrate the application of such general standard.  To avoid potential ambiguity, this example has been removed from the amended and restated interpretive notice.  In general, regardless of whether a formal or informal joint venture has been formed, so long as non-affiliated persons providing legal, accounting, engineering or other professional services (e.g., another dealer serving as a syndicate member) in connection with specific municipal securities business are not being paid directly or indirectly by a dealer for communicating with an issuer for the purpose of obtaining or retaining municipal securities business for the dealer (i.e., they are paid solely for their provision of legal, accounting, engineering or such other professional services with respect to the business), they would not become subject to Rule G-38.

Finally, the amended and restated interpretive notice includes language reminding dealers that the term “payment” under MSRB rules is broadly defined and can include, depending on the facts and circumstances, quid pro quo arrangements whereby a non-affiliated person solicits municipal securities business for the dealer in exchange for being hired by the dealer to provide other unrelated services.[3]

Questions regarding the proposed interpretive guidance may be directed to Ernesto A. Lanza, Senior Associate General Counsel.

December 7, 2005

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INTERPRETIVE NOTICE ON THE DEFINITION OF SOLICITATION UNDER RULES G-37 AND G-38

Municipal Securities Rulemaking Board (“MSRB”) Rule G-38, on solicitation of municipal securities business, defines “solicitation” as any direct or indirect communication with an issuer for the purpose of obtaining or retaining municipal securities business.  This definition is important for purposes of determining whether payments made by a broker, dealer or municipal securities dealer (“dealer”) to persons who are not affiliated persons of the dealer are prohibited under Rule G-38.[4]  In addition, the definition is central to determining whether communications by dealer personnel would result in such personnel being considered municipal finance professionals (“MFPs”) of the dealer for purposes of Rule G-37, on political contributions and prohibitions on municipal securities business.  This notice provides interpretive guidance relating to the status of certain types of communications as solicitations for purposes of Rules G-37 and G-38.

Purpose of Communication

The concept of solicitation under Rules G-37 and G-38 includes as a central element the notion that the communication occurs with the purpose of obtaining or retaining municipal securities business.  The determination of whether a particular communication is a solicitation is dependent upon the specific facts and circumstances relating to such communication.  As a general proposition, any communication made under circumstances reasonably calculated to obtain or retain municipal securities business for the dealer may be considered a solicitation unless the circumstances otherwise indicate that the communication does not have the purpose of obtaining or retaining municipal securities business.  This notice provides examples of circumstances in which a communication may or may not be considered a solicitation.  These examples are illustrative only and are not the only instances in which a solicitation may be deemed to have or have not occurred.

Limited Communications with Issuer Representative

If an issuer representative asks an affiliated person of a dealer whether the dealer has municipal securities capabilities, such affiliated person generally would not be viewed as having solicited municipal securities business if he or she provides a limited affirmative response, together with either providing the issuer representative with contact information for an MFP of the dealer or informing the issuer representative that dealer personnel who handle municipal securities business will contact him or her.   Similarly, if an issuer representative is discussing governmental cash flow management issues with an affiliated person of a dealer who concludes, in his or her professional judgment, that an appropriate means of addressing the issuer’s needs may be through an issue of municipal securities, the affiliated person generally would not be viewed as having solicited business if he or she provides a limited communication to the issuer representative that such alternative may be appropriate, together with either providing the issuer representative with contact information for an MFP or informing the issuer representative that dealer personnel who handle municipal securities business will contact him or her.

In the examples above, if the affiliated person receives compensation such as a finder’s or referral fee for such business or if the affiliated person engages in other activities that could be deemed a solicitation with respect to such business (for example, attending presentations of the dealer’s municipal finance capabilities or responding to a request for proposals), the affiliated person generally would be viewed as having solicited the municipal securities business.[5]

Promotional Communication

The MSRB understands that an affiliated person of a dealer may provide information to potential clients and others regarding the general capabilities of the dealer through either oral or written communications.   Any such communication that is not made with the purpose of obtaining or retaining municipal securities business would not be considered a solicitation.  Thus, depending upon the specific facts and circumstances, a communication that merely lists the significant business lines of a dealer without further descriptive information and which does not give the dealer’s municipal securities practice a place of prominence within such listing generally would not be considered a solicitation unless the facts and circumstances indicate that it was aimed at obtaining or retaining municipal securities business.  To the extent that a communication, such as a dealer brochure or other promotional materials, contains more than a mere listing of business lines, such as brief descriptions of each business line (including its municipal securities capabilities), determining whether such communication is a solicitation depends upon whether the facts and circumstances indicate that it was undertaken for the purpose of obtaining or retaining municipal securities business.  The nature of the information provided and the manner in which it is presented are relevant factors to consider.  Although no single factor is necessarily controlling in determining whether a communication was undertaken for the purpose of obtaining or retaining municipal securities business, the following considerations, among others, may often be relevant:   (i) whether the municipal securities practice is the only business line included in the communication that would reasonably be of interest to an issuer representative; (ii) whether the portions of the communication describing the dealer’s municipal securities capabilities are designed to garner more attention than other portions describing different business lines; (iii) whether the communication contains quantitative or qualitative information on the nature or extent of the dealer’s municipal securities capabilities that is promotional in nature (e.g., quantitative or qualitative rankings, claims of expertise, identification of specific transactions, language associated with “puffery,” etc.); and (iv) whether the dealer is currently seeking to obtain or retain municipal securities business from the issuer.

Work-Related Communications

Communications that are incidental to undertaking tasks to complete municipal securities business for which the dealer has already been engaged generally would not be solicitations.  For example, if a dealer has engaged an independent contractor as a cash flow consultant to provide expert services on a negotiated underwriting for which the dealer has already been selected and the contractor communicates with the issuer on cash flow matters relevant to the financing, such communication would not be a solicitation under Rule G-38.  Similarly, if a dealer has already been selected to serve as the underwriter for an airport financing and a non-MFP affiliated person of the dealer who normally works on airline corporate matters is used to provide his or her expertise to complete the financing, communications in this regard by the affiliated person with the issuer would not be a solicitation under Rule G-38.  In addition, the fact that the work product of persons such as those described above may be used by MFPs of the dealer in their solicitation activities would not make the producer of the work product a solicitor unless such person personally presents his or her work to the issuer in connection with soliciting the municipal securities business.

Communications with Conduit Borrowers

The MSRB understands that dealers often work closely with private entities on their capital and other financing needs.  In many cases, this work may evolve into a conduit borrowing through a conduit issuer.  Although the ultimate obligor on such a financing is the private entity, if the dealer acts as underwriter for a financing undertaken through a conduit issuer on other than a competitive bid basis, it is engaging in municipal securities business for purposes of Rule G-37. The selection of the underwriter for such a financing frequently is made by the conduit borrower. While in many cases conduit issuers have either formal procedures or an informal historical practice of accepting the dealer selected by the conduit borrower, some conduit issuers may set minimum standards that dealers must meet to qualify to underwrite a conduit issue, and other conduit issuers may have a slate of dealers selected by the conduit issuer from which the conduit borrower chooses the underwriter for its issue.  Still other conduit issuers may defer to the conduit borrower’s selection of lead underwriter but may require the underwriting syndicate to include additional dealers selected by the issuer or selected by the conduit borrower from a slate of issuer-approved underwriters, often with the purpose of ensuring participation by local dealers or historically disadvantaged dealers.  A smaller number of conduit issuers retain more significant control over which dealers act as underwriters, either by making the selection for the conduit borrower or by considering the conduit borrower’s selection to be merely a suggestion which in some cases the conduit issuer does not follow.  However, in virtually all cases, the conduit issuer will maintain ultimate power to control which dealer underwrites a conduit issue since the conduit issuer has discretion to withhold its agreement to issue the securities through any particular dealer.

From a literal perspective, any communication by a dealer with a conduit borrower that is intended to cause the borrower to select the dealer to serve as underwriter for a conduit issue could be considered a solicitation of municipal securities business.  This is because the conduit borrower eventually communicates its selection of the dealer to act as underwriter to the conduit issuer for approval.  This series of communications would, by its terms, constitute an indirect communication by the dealer through the conduit borrower to the conduit issuer for the purpose of obtaining or retaining municipal securities business.

However, the MSRB believes that a dealer’s communication with a conduit borrower generally should not be deemed an indirect solicitation of the issuer unless a reasonable nexus can be established between the making of contributions to officials of the conduit issuer within the meaning of Rule G-37 and the selection of the underwriter for such conduit financing. A determination of whether such a reasonable nexus could exist depends on the specific facts and circumstances.

Further, if an affiliated person of a dealer who is providing investment banking services and corporate financing advice to a private company concludes, in his or her professional judgment, that an appropriate financing alternative may be a conduit financing, a limited communication to the company by the affiliated person that such financing alternative may be appropriate, together with the provision to the company of contact information for an MFP of the dealer, generally would not be presumed to be a solicitation.  Alternatively, the affiliated person could inform the company that dealer personnel who handle municipal securities business will contact it.  In addition, if a dealer has already been selected by the conduit borrower to serve as the underwriter for a conduit financing and a non-MFP affiliated person of the dealer communicates with the conduit borrower in furtherance of the financing, such communications by the affiliated person would not be a solicitation under Rule G-38.

Communications by Non-Affiliated Professionals

So long as non-affiliated persons providing legal, accounting, engineering or other professional services in connection with specific municipal securities business are not being paid directly or indirectly by a dealer for communicating with an issuer for the purpose of obtaining or retaining municipal securities business for the dealer (i.e., they are paid solely for their provision of legal, accounting, engineering or other professional services with respect to the business), they would not become subject to Rule G-38.  Dealers are reminded that the term “payment” as used in Rules G-37 and G-38 refers to anything of value and can, depending on the specific facts and circumstances, include quid pro quo arrangements whereby a non-affiliated person solicits municipal securities business for the dealer in exchange for being hired by the dealer to provide other unrelated services.

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