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Copyright (c) 2006 Tulane University
Tulane Law Review

ARTICLE: Tracing

February, 2006

Tulane Law Review

80 Tul. L. Rev. 849


Peter B. Oh*


I. Introduction
As part of a broader initiative integrating statutory disclosure requirements, 1 the Securities and Exchange Commission (SEC) has implemented an "access equals delivery" model for prospectuses. 2 The model relieves certain issuers of their existing obligations to print and deliver a final prospectus to investors prior to or contemporaneous with the sale of a security; 3 such issuers merely have to file the final prospectus with a timely registration statement. 4 This streamlined requirement presumes that investors have access to any filings available on the Internet. 5 Accordingly, posting filings on a Web site constructively effects delivery.

There are consequences to subsuming delivery obligations within the rubric of presumed access. On the one hand, the "access equals delivery" regime would eliminate simultaneous delivery of the final prospectus and a confirmation of sale, 6 arguably clarifying the function of a confirmation and expediting sales of some securities. On the other hand, delivery of the final prospectus after the sale of a security reassures investors that their purchase is part of a registered transaction in a way that presumed access cannot. 7 Recognizing the value of such reassurance, the SEC's rule requires parties effecting sale of a security to send investors a notification, instead of a final prospectus, confirming that the transaction is connected to a registration statement. 8

Providing reassurance, however, was not the original rationale for the notification provision. In unveiling its "access equals delivery" model, the SEC announced: "To preserve an investor's ...
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