SEC Division of Corporation Finance no-action letter: BioCardia, Inc.

September 3, 2019
Nathan Robinson
Wilson Sonsini Goodrich & Rosati
900 South Capital of Texas Highway
Las Cimas, Fifth Floor
August, TX 78746-5546
Re: SEC v. Barry C. Honig, et al., Civil Action No. 1:18-cv-08175 (S.D.N.Y.) (Jan. 10, 2019) - Waivers of disqualification pursuant to Rule 506(d)(2)(ii) of Regulation D and Rule 262(b)(2) of Regulation A Dear Mr. Robinson:
This letter responds to your letter dated August 30, 2019 (“Waiver Letter”), written on behalf of BioCardia, Inc., (“BioCardia”) and constituting an application for waivers of disqualification under Rule 506(d)(2)(ii) of Regulation D and Rule 262(b)(2) of Regulation A under the Securities Act of 1933 (“Securities Act”). In the Waiver Letter, you requested relief from any disqualification that will arise as to BioCardia under Rule 506 of Regulation D and Rule 262 of Regulation A under the Securities Act as a result of the entry of a judgment (“Final Judgment”) on January 10, 2019 in the United States District Court for the Southern District of New York relating to the complaint filed by the Commission on September 7, 2018 against, in relevant part, Dr. Phillip K. Frost and Frost Gamma Investments Trust (together, the “Respondents”). Based on the facts and representations in the Waiver Letter submitted by BioCardia, and assuming that Respondents comply with the Final Judgment, the Commission has determined that BioCardia has made a showing of good cause under Rule 506(d)(2)(ii) of Regulation D and Rule 262(b)(2) of Regulation A that it is not necessary under the circumstances to deny BioCardia reliance on Rule 506 of Regulation D or Rule 262 of Regulation A by reason of the entry of the Final Judgment. This limited waiver of disqualification applies solely to offerings that are consistent with the conditions and representations set forth in the Waiver Letter dated August 30, 2019. Further, disqualification is not waived as to any offering, including those otherwise meeting the conditions and representations set forth in the Waiver Letter, if Respondents fail to comply with any term of the Final Judgment, or if BioCardia has made any material misrepresentation in its request for a waiver. For the Commission, by the Division of Corporation Finance, pursuant to delegated authority. Sincerely, /s/ Elizabeth M. Murphy Associate Director Division of Corporation Finance