Is crowdfunding legal?
May 26, 2012
Below is an
article that I wrote for Business Law Today, a publication for the American Bar Association’s Business Law Section.
Crowdfunding: Its Practical Effect May Be Unclear Until SEC Rulemaking is Complete
President Obama signed the Jumpstart Our Business Startups Act (known
as the JOBS Act) into law on April 5, 2012. One highly anticipated
provision of the JOBS Act, Title III, is entitled ”Capital Raising
Online While Deterring Fraud and Unethical Non-Disclosure Act of 2012”
or the ”CROWDFUND Act.” Title III enables “crowdfunding,” or the ability
to sell securities in small amounts to a large number of investors.
Whether or not the crowdfunding provisions will have a significant
impact on small business fundraising is yet to be determined. Despite
the buzz among entrepreneur communities, various restrictions may make
crowdfunding impractical for companies raising money and the
intermediaries that facilitate the process. Most importantly, the
crowdfunding provisions of the JOBS Act are not yet effective. On April
23, 2012, the SEC published guidance reminding issuers that “any offers
or sale of securities purporting to rely on the crowdfunding exemption
would be unlawful under federal securities laws” until the SEC adopts
new rules.
Crowdfunding Prior to the JOBS Act
Crowdfunding is not a new concept. The Internet has made it easier
for individuals and organizations to raise money for charitable
purposes, political campaigns, artists seeking support from fans and
various other projects. In 2005, Kiva launched a micro-finance platform
that allows people to lend small amounts of money to entrepreneurs in
developing areas. This lending model was further refined, and
peer-to-peer lending companies like Prosper emerged in 2006 and Lending
Club emerged in 2007. More recently, companies like Kickstarter have
emerged to enable the public to fund creative projects ranging from
independent films, video games, and food projects.
Prior to the JOBS Act, crowdfunding suffered from some several legal
limitations. First, crowdfunding involving the sale of securities
triggers the prohibitively expensive registration requirements of the
Securities Act of 1933, as generally no exemptions are available in many
crowdfunding models. Second, websites that facilitate crowdfunding may
be subject to regulation as brokers.
As a result, current crowdfunding platforms have generally developed
business models designed to avoid characterization as a sale of a
security. Some companies utilize pure donation models. Companies like
Kiva that provide micro-loans without interest and do not take
commissions are arguably not offering securities because there is no
expectation of profit on the part of the investors. Other companies like
Kickstarter offer rewards or facilitate the pre-purchase of products.
At the other extreme, because the SEC has taken the position that
interest-bearing notes are securities, companies like Prosper and
Lending Club have registered their offerings with the SEC.
Under pressure from Congress, the SEC agreed to review its
regulations and their effect on capital formation in spring 2011.
Crowdfunding received a boost when the Obama administration endorsed
crowdfunding in September 2011. Although the SEC has the authority to
exempt crowdfunding from the registration requirements of the Securities
Act and to exempt intermediaries from registration as broker-dealers,
Congress has forced the SEC to take action. The House of Representatives
passed a crowdfunding bill in November 2011 and crowdfunding bills were
introduced in the Senate in November 2011 and December 2011 that
resulted in the crowdfunding provisions of the JOBS Act.
Crowdfunding Under the JOBS Act
Title III of the JOBS Act amends Section 4 of the Securities Act by
adding a new paragraph (6), and requires the SEC to promulgate related
rules to create an exemption from registration that permits a private
company to sell securities in small amounts to large numbers of
investors that are not accredited over a 12-month period.
Under the crowdfunding provisions, the aggregate dollar amount of
securities that an issuer can sell in a crowdfunding transaction is
limited to $1 million (less the aggregate amount of securities sold
under other exemptions) over a 12-month period. In addition, the amount
an issuer can sell to an individual investor in any 12-month period is
limited to the maximum of:
• the greater of $2,000 or 5 percent of the annual income or net
worth of an investor, if either the investor’s net worth or annual
income is less than $100,000; and
• 10 percent, not to exceed $100,000, of annual income or net worth
of an investor, if either the investor’s annual income or net worth is
equal to or greater than $100,000.
Securities sold pursuant to the crowdfunding provisions are not
transferable by the purchaser for one-year from the date of purchase,
unless the securities are transferred to the issuer, an accredited
investor, in a registered offering, or to family of the purchaser. The
securities may also be subject to such other limitations as may be
determined by the SEC.
Requirements on Intermediaries
An issuer must sell the securities in a crowdfunding offering through
a broker or funding portal, which is required to register with the SEC
and other applicable self-regulatory organizations.
These intermediaries need to meet a series of specific and
restrictive requirements to be determined by the SEC. For example,
intermediaries will be required to:
• provide investors with certain information (such as disclosures related to risks and other investor education materials);
• ensure that investors review the investor-education information,
affirm their understanding of the risks and answer questions
demonstrating an understanding of the risks;
• take measures to reduce the risk of fraud, including conducting
background checks on officers, directors, and holders of more than 20
percent of the shares of issuers;
• make available to the SEC and potential investors the disclosure
required to be provided by issuers not later than 21 days prior to the
first day on with securities are sold;
• ensure that offering proceeds are provided to the issuer only when
the target offering amount is reached or exceeded and allow investors to
cancel their commitments;
• ensure that no investor in a 12-month period has purchased
securities pursuant to the crowdfunding exemption that exceed the
per-investor limits in the aggregate;
• take steps to ensure the privacy of information collected from investors;
• not compensate promoters, finders, or lead generators for providing
the intermediary with the personal identifying information of any
potential investor; and
• prohibit its directors, officers, or partners from having a financial interest in an issuer using its services.
The SEC is directed to establish rules that exempt funding portals
from broker-dealer registration as long as they are subject to the
authority of the SEC, are a member of a national securities association
and are subject to other requirements the SEC may establish.
However, in order to qualify as a funding portal, the intermediary
must not offer investment advice or recommendations; solicit purchases,
sales, or offers to buy the securities offered on its website;
compensate persons for such solicitation based on the sale of securities
referenced on its website; hold, manage, possess, or otherwise handle
investor funds or securities; or engage in other activities that the SEC
determines.
While separate from the crowdfunding provisions, the JOBS Act also
clarified that certain intermediaries in the fundraising process, such
as web sites like AngelList that facilitate introductions between
companies and investors, are not subject to broker-dealer registration.
Section 201(c) of the JOBS Act provides that certain trading platforms
involved with the sale of securities in a valid Rule 506 private
placement are not subject to registration as a broker or dealer as long
as certain conditions are met, including that persons receive no
compensation in connection with the purchase or sale of securities and
that the platform does not have possession of customer funds or
securities in connection with the purchase or sale of securities.
Requirements for Issuers
Issuers utilizing crowdfunding must make financial and other
information available to both the SEC and investors, both in connection
with the offering and on an annual basis. The JOBS Act provides for a
tiered disclosure regime based on the size of the offering, including
the following:
• $100,000 or less: Income tax returns for the last fiscal year and
unaudited financial statements certified as accurate by the principal
executive officer.
• $100,000 to $500,000: Financial statements reviewed by an independent public accountant.
• More than $500,000: Audited financial statements.
As a practical matter, many early-stage startup companies that are
considering crowdfunding may have only been recently incorporated and
have not yet filed tax returns. Furthermore, many startup companies may
not yet have engaged independent public accountants, nor have audited
financial statements at the time they wish to raise funds.
Among other things, the issuer must file with the SEC and provide to
investors and the intermediary and make available to potential
investors:
• basic corporate information including name, legal status, address, and website;
• names of officers and directors (and any persons occupying similar status or performing similar functions);
• names of any holder of more than 20 percent of the shares of the issuer;
• description of the business and the anticipated business plan of the issuer;
• description of the stated purpose and intended use of the proceeds of the offering;
• target offering amount, deadline to reach such target amount, and
regular updates relating to the issuer’s progress in meeting the target
offering amount;
• the price to the public of the securities or the method for
determining the price, and written disclosure prior to the sale of the
final price and all required disclosures, providing investors with a
reasonable opportunity to rescind the commitment to purchase;
• description of the ownership and capital structure of the issuer; and
• such other information as the SEC may prescribe.
Issuers must file annual reports with SEC and provide to investors
reports of results of operations and financial statements as the SEC
determines. However, many private companies wish to protect such
sensitive financial information and may be disinclined from utilizing
the exemption for this reason.
Furthermore, issuers may not advertise the terms of the offering
except through notices that direct investors to the broker or funding
portal. Compensation of intermediaries will be subject to rules designed
to ensure that recipients disclose receipt of compensation.
In addition, the JOBS Act specifically authorizes an investor in a
crowdfunding transaction to bring a civil action against an issuer for
material misstatements or omissions in disclosures provided to
investors. Such an action is subject to the provisions of Section 12(b)
and Section 13 of the Securities Act.
The crowdfunding exemption will not be available to foreign
companies, SEC reporting companies, investment companies, and companies
excluded from the definition of investment company by virtue of Section
3(b) or 3(c) of the Investment Company Act of 1940.
The SEC is directed to promulgate disqualification provisions under
which an issuer is not eligible to offer securities pursuant to new
Section 4(6) of the Securities Act and brokers or funding portals shall
not be eligible to effect or participate in crowdfunding transactions.
Coordination with State Law and Other Exemptions
Securities acquired pursuant to the crowdfunding provisions will be
exempt from registration or qualification under state blue sky laws. In
addition, states may not require a filing or a fee for crowdfunding
securities except for the state of the principal place of business of
the issuer or the state in which purchasers of 50 percent or greater of
the aggregate amount raised are residents. However, the crowdfunding
provisions preserve state enforcement authority over unlawful conduct by
intermediaries and issuers and with respect to fraud or deceit.
While the JOBS Act specifically states that the crowdfunding
amendments to the Securities Act are not to be interpreted as preventing
an issuer from raising capital through other methods, it is unclear in
practice how this will work. Private placements conducted through
Regulation D-the most common type of private offering transaction-may be
integrated with other offerings conducted within six months. Absent SEC
clarification, significant questions regarding integration may inhibit a
crowdfunding transaction at the same time as an angel or venture
capital-led transaction with accredited investors is being conducted.
In addition, the SEC is directed to issue a rule to exclude persons
holding crowdfunding securities from the shareholder threshold for
registration under Section 12(g) of the Securities Exchange Act of 1934.
SEC Rulemaking
The crowdfunding provisions of the JOBS Act require significant SEC
rulemaking, which is supposed to occur by December 31, 2012. In addition
to specific areas that the SEC is supposed to address through
rulemaking, the SEC is given wide discretion to prescribe various
requirements on intermediaries and issuers for the protection of
investors and in the public interest. The SEC has begun accepting public
comments on regulatory initiatives under the JOBS Act, including the
crowdfunding provisions.
SEC Chairman Mary Schapiro has publicly stated that the proposed
rulemaking deadlines in the JOBS Act do not provide sufficient time for
the SEC to consider and adopt rules under the act. Given these
statements, it is not clear when companies actually will be able to take
advantage of all of the provisions of the JOBS Act, including the
crowdfunding provisions. Given the extensive SEC rulemaking required by
the JOBS Act, and the investor protection issues involved, it is unclear
whether the SEC will meet the deadline.
Raising Capital Apart from Crowdfunding
Other provisions of the JOBS Act provide opportunities to enable
capital raising other than through crowdfunding. For example, Section
201(a)(1) of the JOBS Act directs the SEC to amend Rule 506 to make the
prohibition against general solicitation or general advertising
contained in Rule 502(c) inapplicable to offers and sales under Rule 506
provided that all purchasers are accredited investors. Section 201(b)
amends Section 4 of the Securities Act to provide that offers and sales
exempt under Rule 506 as revised by Section 201 “shall not be deemed
public offerings under the Federal securities laws” as a result of
general advertising or general solicitation. Section 201(a) requires the
SEC to amend both Rule 506 and Rule 144A not later than 90 days after
enactment of the JOBS Act. Therefore, after SEC rulemaking is complete,
it may be easier for issuers to advertise Rule 506 offerings and raise
capital through the sale of securities to accredited investors.
What the Crowdfunding Provisions Mean
First, companies should not try to utilize crowdfunding until the SEC
finalizes rulemaking. Doing so would violate the securities laws and,
in view of the “bad actor” provisions in the JOBS Act, may preclude a
company from subsequently utilizing crowdfunding to raise capital.
Second, crowdfunding will clearly expand the options available to
small companies seeking financing. As some early-stage startup companies
have used Kickstarter to fund pre-sales of products, some startups may
choose to use crowdfunding as an alternative to more conventional
sources of funding.
Third, companies seeking to raise capital through crowdfunding will
need attorneys involved to ensure that their corporate housekeeping is
in order. Companies will need to ensure that an appropriate number and
type of shares is authorized and review provisions relating to voting
rights, board composition, and other matters that may be affected when
the number of stockholders increases. In addition, companies will need
to consider whether they will want their stockholders to enter into
agreements imposing restrictions on share transfers, such as a company
right of first refusal or IPO-related lock-up provisions. Furthermore,
with a large number of stockholders, companies may want to review their
director and officer indemnification provisions, and consider obtaining
director’s and officer’s liability insurance.
Fourth, companies will be required to make filings with the SEC.
Although these filings will be less burdensome than the filings required
by public companies, they may still impose burdens on the resources of
small companies, and may subject the companies and their officers and
directors to potential liability if not properly prepared.
Fifth, many companies may be unable to prepare disclosure documents
in compliance with the crowdfunding provisions of the JOBS Act. The SEC
may use its rulemaking authority to prescribe a format, such as the Form
1-A Regulation A offering statement and the model offering circular
contained in the form, which may impose a significant burden to raising a
small amount of money.
Sixth, the increase in number of stockholders as a result of
crowdfunding may result in increased administrative burdens on issuers.
Stockholders may call or e-mail company personnel with questions or
request meetings and may seek to avail themselves of rights to attend
and participate in stockholder meetings and to inspect corporate books
and records. Should litigation arise, it may be more challenging to
manage such actions as the number of stockholders increases. In
addition, if an issuer is the target of an acquisition, having a large
number of stockholders may complicate securities law compliance.
Seventh, companies will need to choose intermediaries carefully.
While some intermediaries’ websites have already begun to prepare for
crowdfunding, the transaction fees charged by intermediaries have not
yet been determined and there is the risk that fees will be excessive or
that unscrupulous persons will masquerade as registered intermediaries.
Finally, it is possible that the attention given to crowdfunding may
result in more elaborate schemes to defraud the public. Although the SEC
will likely establish strict regulations on issuers and intermediaries,
the perception that crowdfunding is legitimate may encourage
unscrupulous persons to spam the public with various fraudulent
crowdfunding opportunities not in compliance with the crowdfunding
provisions of the JOBS Act. This may range from fraudsters operating
fraudulent intermediaries to directly soliciting investments in
fraudulent businesses.
Written by Yokum · Filed Under
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