Disclosure Counsel

/Overview

More stringent reporting requirements are the new normal. The Securities Exchange Commission (SEC) has focused more heavily on the municipal bond industry over the past 15 years. Issuers need a partner with a strong grounding in federal securities law, the SEC, and the Municipal Securities Rulemaking Board requirements as they affect municipal transactions.

We serve as disclosure counsel (often together as bond counsel) for some of the largest issuers of municipal debt in the United States. Our attorneys have broad experience addressing securities issues in municipal financings, particularly where the SEC has focused its regulatory and enforcement divisions.

We engage in the disclosure process with a disciplined caution, addressing the big picture that keeps clients ahead of the game. Our team focuses on two aspects of an issuer’s involvement in preparing a disclosure document:

• Ensuring you develop a careful and reasonable process for preparing and reviewing your documents
• Helping you tell the big-picture credit story on which investors will base their investment decisions.

/Representative Experience

• Metropolitan Transportation Authority (MTA): As an example of our depth of capabilities, MTA engaged us to author and review their annual disclosure document, which covers all bond credits since 1997. Our team, operating first as disclosure counsel and currently as bond counsel, assisted in the initial creation of the document and have reviewed it annually ever since. Last year’s filing included over 150 pages of 10-year historical, statistical, and narrative disclosure and over 100 pages of series-by-series data on outstanding bonds. The filing includes the audited financial statements and annual feasibility study for New York City’s bridges and tunnels. The document is circulated to substantially all major institutional investors in CD-ROM and/or printed format and is available in print or online at the MTA’s website.
• New York Power Authority (NYPA): We have been actively engaged in reviewing the disclosure documents of the NYPA since 1998. Our first NYPA transaction involved the issuance of four series of bonds totaling almost $1.4 billion. We helped NYPA develop an approach to the disclosure that reflected the changing national market for electricity services and NYPA’s multi-pronged efforts to respond to this challenge. Since then, NYPA restructured its disclosure documents, streamlining the information needed and making it easier and more efficient to prepare new documents that could function for multiple simultaneous transactions. The changes also made the documents more readable for investors. In all of these efforts, we worked closely with NYPA’s staff and outside consultants and attorneys.
• Counsel to Leading California Issuers: We serve or have served as disclosure counsel or as a combination bond and disclosure counsel for a number of issuers in California, including, among others, the City of Los Angeles, the Public Works Board of the State of California, the City of San Diego, the Airport Commission of the City and County of San Francisco, the Port of Oakland, the Los Angeles County Metropolitan Transportation Authority, and the Department of Airports of the City of Los Angeles.
• Training and Staff Policy Advice: Members of the Public Finance group have prepared disclosure manuals for several governmental entities in California, including the County of San Diego, the County of Santa Clara, and the County of Santa Barbara. Our team also developed training programs for personnel involved in the disclosure process.
• State of California Public Works Board: The firm currently serves and has served since Fall 2011 as disclosure counsel to the State of California Public Works Board. The proceeds of the bond issues go toward improvements to a wide variety of State of California properties, including prisons, hospitals, office buildings, and various university facilities. Each transaction involves multiple disclosure issues where we work alongside bond counsel to properly address the concerns of underwriters and their various counsel. Since our initial engagement, we have served as disclosure counsel on ten transactions totaling over $3 billion.
• San Francisco International Airport: We have served as disclosure counsel to the Airport Commission of the City and County of San Francisco since Fall 2010. We took the primary lead in evaluating and revising the Airport Commission’s disclosure approach and form and practices. We prepared and managed all of the airport’s numerous disclosure documents in connection with its bond issuances, remarketed bonds, and issuances of commercial paper and assisted the commission with ongoing continuing disclosure obligations. Most recently, we served as disclosure counsel for the commission’s issuance of approximately $461 million of fixed-rate revenue bonds (alternative minimum tax (AMT), non-AMT, and taxable) in August 2013.
• Metropolitan Washington Airports Authority (MWAA)—Dulles Toll Road: We represented MWAA as bond counsel and disclosure counsel in connection with the Dulles Toll Road credit, using the tolls collected to fund an extension of the DC Metrorail system to Dulles Airport. The unique challenge of this issuer was to present disclosure as to the airport’s authority regarding this new project to differentiate it from airport operations. The project is an approximately $6.5 billion project, currently in Phase 1. In connection with the first financing, litigation challenging MWAA’s legal authority to operate and set tolls on the toll road and undertake the project was initiated after the execution of the purchase contract but prior to the closing. We worked closely with the issuer, the underwriters, and the bond insurer to revise the disclosure to reflect the challenge and assist MWAA’s general counsel with a legal opinion addressing the substance of the litigation.
• Tobacco Securitizations: We played a major role in shaping the disclosure employed in tobacco securitization transactions. In our capacity as special disclosure counsel or underwriters’ counsel for tobacco settlement securitizations throughout the country, the firm was primarily responsible for preparing the necessary offering/disclosure documents. We also performed the diligence review of the information contained in such documents concerning major public tobacco companies and the status of pending individual litigations and class actions, the outcomes of which could adversely affect the security of the bonds.

/Recognition

• Nixon Peabody has been named a Tier 1 National firm for Public Finance Law in the 2025 edition of Best Law Firms®.
• The Legal 500 United States 2024 editorial—ranked for Project finance - Infrastructure and PPP
• Ranked in Chambers USA for Public Finance—Nationwide and also in California, District of Columbia, Illinois, New York.
• Nixon Peabody was named by U.S. News/Best Lawyers® 2021 as “Law Firm of the Year” in Public Finance Law.
• Consistently ranked Top 10 in bond counsel, underwriter’s counsel, disclosure counsel, special tax counsel, and green bond counsel by Thomson Reuters.