Securities law practitioners know that Section 5(a) of the Securities Act of 1933 generally makes it unlawful to sell a security unless a registration statement is in effect, or the security or the transaction is exempt.  Regulation D is a series of rules that establish  conditions for two exemptions from registration under the Securities Act.   Because Regulation D creates exemptions from registration, the issuer is not required to file and have declared effective a registration statement.

While Regulation D does not require the filing of a registration statement, it does require the filing of a notice of exemption known as a Form D.   See Is Form D Afflicted With Mission Creep?  Although Regulation D requires the filing of a Form D, a failure to file will not vitiate the exemption that otherwise meets the conditions of Regulation D.  Compliance & Disclosure Interpretation No. 257.07 (Jan.  26, 2009). 

Non-practitioners may not be as attuned to the distinctions between a registered offering requiring the filing of a registration statement and an exempt offering under Regulation D requiring the filing of a Form D.  Failing to distinguish between the two concepts, however, may prove costly. 

In Cress v. Nexo Financial LLC, 2023 WL 6609352 (Oct. 10, 2023), the plaintiff brought various claims for securities fraud under Sections 25401 and 25504.1 of the California Corporations Code.   Among other things, the plaintiff claimed that an employee of the issuer had represented that "the NEXO token is registered with the SEC as a security . . .".   The plaintiff pled that the issuer had filed a Form D with respect to the NEXO token.  U.S. Magistrate Judge Thomas S. Hixson therefore denied the defendants' motion to dismiss.