Build America Bonds and Other Tax Credit Bonds: Application of Rule G-37 to Solicitations of Issuers
On April 24, 2009, the Municipal Securities Rulemaking Board (the "MSRB") published Notice 2009-15 on Build America Bonds and Other Tax Credit Bonds (the "April 2009 Notice"). In the April 2009 Notice, the MSRB explained that Build America Bonds and the other tax credit bonds described in the April 2009 Notice are municipal securities and are, therefore, subject to MSRB rules, including Rule G-37 on political contributions.
The MSRB understands that, for the purpose of obtaining municipal securities business as defined in Rule G-37,[1] personnel from the taxable desk of brokers, dealers, or municipal securities dealers ("dealers"), or personnel from other departments or divisions of dealers that do not traditionally engage in municipal securities business, may participate in presentations to potential issuers of Build America Bonds or other tax credit bonds in response to requests for proposals or in other pre-selection meetings with such potential issuers to discuss the structuring, pricing, sales, and distribution of taxable bonds. Dealers are reminded that such participation generally will make those personnel "municipal finance professionals" under Rule G-37(g)(iv)(B), because the personnel are considered to have solicited municipal securities business.[2]
Pursuant to Rule G-37(b)(ii), political contributions made by such personnel to an official of the issuer solicited by such personnel within the two years prior to the solicitation would need to be examined by the dealer to determine whether the two-year ban on municipal securities business imposed by Rule G-37(b)(i) is triggered by the solicitation.[3] By engaging in solicitation activities, such personnel would become municipal finance professionals and subsequent political contributions to issuer officials by such personnel would also be subject to Rule G-37.
[1] Rule G-37(g)(vii) defines municipal securities business as "(A) the purchase of a primary offering (as defined in rule A-13(f)) of municipal securities from the issuer on other than a competitive bid basis (e.g., negotiated underwritings); or (B) the offer or sale of a primary offering of municipal securities on behalf of any issuer (e.g., private placement); or (C) the provision of financial advisory or consultant services to or on behalf of an issuer with respect to a primary offering of municipal securities in which the dealer was chosen to provide such services on other than a competitive bid basis; or (D) the provision of remarketing agent services to or on behalf of an issuer with respect to a primary offering of municipal securities in which the dealer was chosen to provide such services on other than a competitive bid basis."
[2] Any associated person of a dealer who solicits municipal securities business is a municipal finance professional pursuant to Rule G-37(g)(iv)(B), regardless of whether such associated person engages in any other municipal securities activities for the dealer. Pursuant to Rule G-37(g)(ix) and Rule G-38(b)(i), solicitation of municipal securities business consists of any direct or indirect communication with an issuer for the purpose of obtaining or retaining municipal securities business.
Once a dealer has been selected to engage in the underwriting of the new issue, communications with the issuer necessary to undertake that engagement are not considered solicitations for purposes of Rule G-37. See Rule G-38 Interpretation - Interpretive Notice on the Definition of Solicitation Under Rules G-37 and G-38 (June 8, 2006).
[3] Thus, if a municipal finance professional has made a political contribution to an official of an issuer, other than a "de minimis" contribution under Rule G-37(b), during the preceding two years, the dealer would be banned from engaging in municipal securities business with such issuer if the municipal finance professional were to participate in the solicitation of such business. Political contributions made by a municipal finance professional to an issuer official for whom such municipal finance professional is entitled to vote are considered de minimis and would not result in a ban on municipal securities business if such contributions, in total, did not exceed $250 per election.
