Now that you know which securities and transactions are exempt, an important question arises: can the Administrator take away those exemptions? The answer depends on which exemption is involved.
Administrator's Power to Deny or Revoke
Under the Uniform Securities Act (USA), the Administrator may by order deny or revoke certain exemptions, but not all of them.
Exemptions the Administrator CAN Revoke
Exempt securities subject to revocation:
- Exchange-listed securities
- Nonprofit organization securities
- Employee benefit plan securities
Exempt transactions:
- All exempt transaction exemptions can be denied or revoked
Exemptions the Administrator CANNOT Revoke
The Administrator has no authority to revoke exemptions for:
- (1) Government securities (U.S., state, municipal)
- (2) Canadian and foreign government securities
- (3) Bank securities
- (4) Savings and loan securities
- (5) Insurance company securities
- (6) Credit union securities
- (7) Railroad, utility, and holding company securities
- (10) Commercial paper
| Exempt Securities | Can Administrator Revoke? |
|---|---|
| Government, bank, insurance, utility, and similar institutional issuers | No: immune from revocation |
| Exchange-listed | Yes |
| Nonprofit | Yes |
| Commercial paper | No: immune from revocation |
| Employee benefit plan | Yes |
| All exempt transactions | Yes |
Exam Tip: Gotchas
The pattern to remember: government-related and financial-institution securities plus commercial paper are immune from revocation. The Administrator can only revoke exemptions for exchange-listed, nonprofit, and employee benefit plan securities, plus all exempt transactions.
Procedural Requirements
No order denying or revoking an exemption may be entered without:
- Appropriate prior notice to all interested parties
- Opportunity for hearing
- Written findings of fact and conclusions of law
Summary (Emergency) Orders
The Administrator may act summarily (without prior hearing) to deny or revoke an exemption pending a final determination. After entering a summary order:
- The Administrator must promptly notify all interested parties
- A hearing must be set within 15 days of receiving a written request
- If no hearing is requested and none is ordered by the Administrator, the summary order remains in effect until modified or vacated
No Retroactive Effect
No denial or revocation order may operate retroactively. This means the revocation only affects future transactions; it cannot undo transactions that were lawfully completed before the order was entered.
Good Faith Defense
A person is not considered to have violated the securities registration requirement or the cease-and-desist provisions by reason of any offer or sale effected after the entry of a revocation order if the person proves that they:
- Did not know of the order, AND
- In the exercise of reasonable care, could not have known of the order
This provides a defense for persons who act in good faith and without knowledge of the revocation. However, it requires proving both lack of actual knowledge and the exercise of reasonable care; negligence is not excused.