We previously blogged about securities regulation of interests in oil and gas exploration and development. Industry participants, state and federal securities regulators have recently cautioned investors regarding investing in oil and gas ventures.
At the federal level, the U.S. Securities and Exchange Commission (SEC) issued an investor alert aimed at private oil and gas offerings. In addition to the usual cautions to investors to do their homework on these deals, the SEC encouraged investors to verify that the person offering the investment is licensed as a broker-dealer. The SEC recently stepped up its efforts to pursue “finders” and other unlicensed persons compensated by issuers to assist in finding investors. Companies raising investment funds need to understand that persons who they engage to assist in selling investments are required to have a securities license. Failure to do so exposes the issuer to civil liability, including rescission claims by investors, and potential criminal liability in cases where material misstatements or omissions are made in the private placement memorandum or other offering material, or other fraudulent activity is present. The investor alert cites several examples of recent enforcement actions where such illegal activity was involved.…
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It is unfortunately commonplace for many participants in the oil and gas industry, particularly in the sale of interests in oil and gas production activities, to ignore the requirements of federal and state securities laws applicable to these activities. However, the sale of an oil & gas working interest is the sale of a “security” under the securities laws, and the disclosure requirements of these laws apply just the same as the would in the sale of stock or an interest in a limited liability company.
Non-operating working interests in oil and gas leases are “securities” under the Securities Act of 1933 (the “Securities Act”), the Securities Exchange Act of 1934 (“Exchange Act”), and the Ohio Securities Act (“OSA”) because (i) working interests are “fractional undivided interest[s] in oil, gas or other mineral rights”  or “interests in or under oil, gas or mining leases”  and (ii) working interests coupled with an operating agreement and a promotional scheme are “investment contracts” under thes provisions. A non-operating working interest owner in an oil and gas lease (“NWI”) is an undivided co-owner and tenant in common with the other working interest owners in an oil and gas lease. By definition, a NWI owns (i) a “fractional undivided interest in oil, gas, or other mineral rights” under the Securities Act, (ii) a “participation in . . . any oil, gas, or other mineral royalty or lease” under the Exchange Act, and (iii) an “interest[ ] in or under oil, gas or mining …
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The Securities and Exchange Commission (“SEC”) recently adopted a final rule pursuant to Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) requiring resource extraction issuers (companies engaged in the development of oil, natural gas, or minerals) to disclose in an annual report information relating to any payment made by the issuer, a subsidiary of the issuer, or an entity under the control of the issuer, to a foreign government or the U.S. government for the purpose of the commercial development of oil, natural gas, or minerals. Section 1504 added Section 13(q) to the Securities Exchange Act of 1934 (the “Exchange Act”), which requires the SEC to promulgate rules requiring disclosure to be made by resource extraction issuers annually by filing a Form SD with the SEC.
Bob Tannous, Editor of the Federal Securities Law blog, has a post focused on the rule; as this may be of interest to many in the industry, we wanted to share it with you.
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