In this case, the issuer cancelled a proposed secondary stock offering for which the broker-dealer was planning to act as the lead underwriter.  At that point, the issuer planned another offering, and the broker-dealer was invited to participate as a co-manager.   However, according to the SEC, the broker-dealer’s participation was made contingent by the issuer upon the broker-dealer commencing research coverage – a “quid pro quo” – which the investment bank agreed to do.  In commencing research coverage, the investment bank rated the stock a “buy,” with a price target that was considerably higher than its then current market price.¹

In issuing the fine, the SEC relied on its traditional guidance as to when a broker-dealer is subject to Section 5(b)(1)’s potential limitations on issuing research.  In particular, the SEC has stated that a broker-dealer that publishes research is subject to Section 5(b)(1):

• while seeking to participate in the underwriting of the issuer’s securities offering;
• after having been invited to participate by the issuer in the underwriting of its securities offering; or
• after reaching an understanding with the issuer that it will participate as a managing underwriter in the issuer’s securities offering.

Under these circumstances, the SEC will typically view a research report about the subject company as an improper prospectus.  While SEC Rule 139 includes a safe harbor from the definition of “prospectus” for research reports that satisfy the rule, this safe harbor excludes cases such as this one, where the broker-dealer initiated coverage.  Here, the SEC deemed the research report to be a prospectus, due to its potential to condition the market.  The SEC’s fine in this matter is further indication of regulatory interest in research related supervisory and oversight lapses.

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BOSTON, Aug. 27, 2014 /PRNewswire/ — Rhythm, a biopharmaceutical company developing peptide therapeutics that address gastrointestinal diseases and genetic deficiencies that result in metabolic disorders, announced today that it has filed a registration statement on Form S-1 with the U.S. Securities and Exchange Commission (SEC) relating to the proposed initial public offering of shares of its common stock. The number of shares to be offered and the price range for the offering have not yet been determined.

Citigroup and Cowen and Company will act as joint book-running managers for the offering. Canaccord Genuity Inc., Oppenheimer & Co., and Cantor Fitzgerald & Co. will act as co-managers. The offering will be made only by means of a prospectus. When available, copies of the preliminary prospectus relating to the offering may be obtained from Citigroup, c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, New York 11717, or by email atprospectus@citi.com, or by calling (800) 831-9146, and from Cowen and Company, c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, New York 11717, or by calling (631) 274-2806, or by fax at (631) 254-7140.

A registration statement relating to these securities has been filed with the SEC, but has not yet become effective. These securities may not be sold, nor may offers to buy be accepted, prior to the time the registration statement becomes effective. This press release shall not constitute an offer to sell or a solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful, prior to registration or qualification under the securities laws of any such state or jurisdiction.

Rhythm is a biopharmaceutical company developing peptide therapeutics that address unmet needs in gastrointestinal diseases and genetic deficiencies that result in metabolic disorders. Rhythm is developing the ghrelin peptide agonist, relamorelin (RM-131), for the treatment of diabetic gastroparesis and other gastrointestinal functional disorders; and the MC4R peptide agonist, RM-493, for obesity caused by genetic deficiencies in the MC4 pathway. The company is based in Boston, Massachusetts.

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