Crowdfunding Legal Resources

I really appreciate the time you spend on my blog. To make the blog more useful, I’ve added a Legal Links button, up there to the right. To start, you’ll find links to:

I plan to add more links in the future and welcome your suggestions.

Questions? Let me know.

Crowdfunding Speaking Engagements – Fall 2015

Map of Mark Roderick

September 24th – Chicago, IL

RealCap Chicago

Real Estate Crowdfunding Conference Real Cap Chi

RealCap Chicago will provide real estate entrepreneurs the opportunity to hear from the country’s leading real estate crowdfunding platforms. Attendees will learn how to raise debt and equity online for projects including “fix and flip” single family homes, multifamily complexes, commercial buildings, and ground up development projects.

Meet The Future of Real Estate Capital

“The rapid growth of real estate crowdfunding platforms can be attributed to both the low minimum investments of $100 – $10,000 as well as the transparency which both developers and investors now benefit from as they compare terms and opportunities on platforms, and even across platforms, ” Jorge Newbery said. “The ease and speed of investing on the platforms is seductive. Online capital raising is the future of real estate finance.” There are over 75 real estate crowdfunding platforms active in the United States, which several additional platforms planning to launch soon.

Click here for the full conference agenda.

MY SESSION: The Evolution of Online Capital Raising

Moderator: Mark Roderick, Flaster Greenebrg PC @CrowdfundAttny 

Panel Members:

  • AdaPia d’Errico, Patch of Land @Adapia
  • Jordan Fishfeld, Peer Realty @PeerRealty
  • Eve Picker, Small Change
  • Scott Jordan,HealthiosXchange @HealthiosX
  • Bhavik Dani, EquityRoots @EquityRoots

Click here for more information or to register. Stay connected #RealCapChi

October 13th – October 15th – Fairmont Royal York Hotel – Toronto, ON Canada

NAIOP Commercial Real Estate Conference 2015

NAIOP is taking its fall meeting north of the border for the first time since 1996 and you won’t want to naiopmiss the energy and enthusiasm in one of Canada’s fastest growing cities.

Toronto is home to NAIOP’s second largest chapter and is excited to host commercial real estate professionals from across North America at this leading industry event.

  • DEALS: Nearly 1,000 industry and association leaders who’ve come together to share strategies, make contacts and learn new ideas.
  • CONNECTIONS: Broaden your network in unlimited networking and business-building opportunities, including special events and receptions. Meet partners showcasing the latest innovative tools that can advance your business.
  • TRENDS: 15+ education sessions, featuring nationally recognized speakers, trainers, and industry experts, who discuss timely topics and critical issues to your business.

Click here for the full conference agenda.

MY SESSION: Crowdfunding and New Ways of Raising Capital (October 14th)

Moderator: Mark Roderick, Flaster Greenberg PC @CrowdfundAttny

Panel Members:

Click here for more information or to register. Stay connected #Crecon15

October 22nd – Builders League of South Jersey – Cherry Hill, NJ

Crowdfunding for Real Estate – News Ways of Raising Capital

8:30 – 10:30 A.M.

blsjEvent Details:

The internet has arrived in the capital formation business! In case you haven’t heard, Crowdfunding is a way to fund a project or venture by raising many small amounts of money from a large number of people, typically via the Internet. Explore its growth from small investments to large, how the process is managed, the risk and reward factors, and what the future holds. Learn about the potential for builders/developers and how New Jersey compares to other states.

*Free to all BLSJ Members/$25 Non-Members

To register, email Marlene Spencer at marlene@blsj.com

October 26th – Trump International Hotel Las Vegas – Las Vegas, NV

4th Annual GCCB Conference – REGULATION A PLUS MASTER CLASS

gccbThis very special event will sell out quickly and space is limited. Join us for the country’s first REG A PLUS Master Class training for professionals under the JOBS Act. We will kick off this event on Sunday night with a special Dinner for our sponsors and VIP attendees.

This is your opportunity to learn from the best and the brightest experts in the industry how you can integrate this new securities offerings directly into the professional services that you offer your clients . And this will help you stand out as one of the first experts in Title IV of the JOBS Act, REG A PLUS in your city or state.

This is a first mover advantage you don’t want to miss.

Speakers:

Click here for more information or to register. Stay connected #GCCB2015

You Can Use Subsidiaries Without Violating the 100 Investor Rule

crowdfunding_investorEveryone knows the “100 investor rule” is a thorn in the side of Crowdfunding portals. The good news is you can still use subsidiaries to protect yourself from liability.

The basics of the 100 investor rule:

  • A company engaged in the business of investing in securities is an “investment company” and subject to burdensome regulation under the Investment Act of 1940.
  • A “special purpose vehicle” formed by a portal to invest in a portfolio company is engaged in the business of investing in securities.
  • There’s an exception: if the SPV has no more than 100 investors, it’s not an investment company.

Today, most deals on Crowdfunding portals are funded with fewer than 100 investors and qualify for the exception. But that’s because most Crowdfunding deals are still small, i.e., less than $2 million. As the deals get bigger and, most important, as we start to see pools of assets rather than individual assets, SPVs will no longer be available. Already, they’re not available for Regulation A+ deals.

In the absence of an SPV, investors will be admitted directly to the issuer’s cap table. But what if the issuer owns one or more subsidiaries? Will the issuer itself be disqualified as an investment company?

Here’s an example. Suppose NewCo is raising $25 million to acquire 10 properties, and we expect 1,000 investors. We’d like to put each property in a separate subsidiary because (1) we might want to finance them separately, and (2) we don’t want the liabilities arising from one property to leak into another property. But would that make NewCo an investment company, holding the stock (securities) of 10 subsidiaries?

Fortunately, the answer is No.

For purposes of deciding whether NewCo is an investment company, the rule is that you ignore securities issued by any company that NewCo controls, as long as the company itself is not an investment company.

That means NewCo can put Business #1 in Subsidiary #1, Business #2 in Subsidiary #2, and so on and so forth, without becoming an investment company. Most likely, NewCo will hold each property in a separate limited liability company, serving as the manager of each.

Don’t fool around with investment company issues. A company that becomes an investment company without knowing it can face a world of trouble, including having all its contracts invalidated.

Questions? Let me know.

Insurance For Crowdfunding Portals

Every Crowdfunding portal should carry liability insurance. The important questions are what kind, how much, and with what terms.

Like all businesses, Crowdfunding portals should consider the following “standard” liability coverage:

  • General liability insurance (slip and fall, etc.)
  • Employment Practices Liability insurance (sexual harassment, etc.)
  • Workers Compensation and Employers liability Insurance (usually mandatory by law)
  • Excess or Umbrella Liability coverage (providing additional coverage limits for liability claims, and in the case of umbrella coverage, coverage for some claims not provided by a commercial general liability policy)

However, the “standard” coverage probably won’t cover everything a portal does. For that, a portal will need insurance specific to the world of buying and selling securities.

Someday, maybe soon, the insurance industry will create a product specifically for Crowdfunding portals and buying the right policy will be easier. But that hasn’t happened yet. Today, you have to pick a policy type that seems close – maybe a policy for managing a private investmentumbrella 2 fund – and then seek to modify the policy yourself. For example, the policy might cover making investments in portfolio companies. You would have to seek to modify that policy to explicitly cover “Raising money for debt and equity investments under SEC Rule 506 and Regulation A, and all related activities.”

Don’t assume that a “standard” policy will cover lawsuits from unhappy investors, for example. Also don’t assume that your insurance agent understands exactly what a Crowdfunding portal does. Sure, the insurance company will sell you the policy and accept the premium, but that’s only the first chapter in the story. The rubber hits the road when you’re sued and submit a claim. That’s a really bad time to find out your coverage is inadequate.

Portals should also consider:

  • Director and officer insurance, which protect the officers, directors, and managers of the entity from claims made on behalf of the entity
  • Fiduciary Liability insurance, which covers misappropriations by employees.

How much insurance should you buy? You’ve got to consider the size of your deals, how many deals you do each year, the amount of the typical investment, and the risk profile of your deals. You’ll find that the first dollar of coverage is the most expensive, while each additional dollar is relatively less expensive.

As anyone who’s been through litigation knows, being sued is very expensive. That’s why it’s critical that your insurance cover not only payment of the actual claims (if you lose or settle), but the cost of defending the claims. Sometimes the costs of defense are subtracted from the policy limits, and therefore effectively erode those limits.

EXAMPLE: Your nominal policy limit is $3 million, but defense costs are subtracted. The carrier spends $350,000 to defend a claim (yes, that’s possible). Now your policy limit is $2,650,000.

Other key points to consider in an insurance policy:

  • Whether the coverage is “occurrence” or “claims made” (the former covers all claims that relate to periods while the coverage was in effect; the latter covers only claims made while the coverage is still in effect)
  • Whether and to what extent the coverage includes “prior acts” (things that happened before the coverage was in effect)
  • The deductibles (the amount you have to pay before the insurance kicks in)
  • Whether you have the right to select legal counsel or must accept the lawyer chosen for you by the insurance company

My colleague, Mitch Kizner, spends most of his time arguing with insurance carriers about terms and coverage. If you’re wondering whether you’re covered, Mitch is a good guy to speak to. His email address is mitch.kizner@flastergreenberg.com and his direct dial is (856) 382-2247. You can also follow his blog at www.mitchkizner.com or on twitter @MitchKizner.

A Regulation A+ Primer

Regulation A Plus Women GossipingNo disrespect to Kim Kardashian, but I think the SEC’s Proposed Amendments to Regulation A have come closer to breaking the Internet than the photos I heard about last year – although that could be a function of the circles I travel in.

My contribution started as a blog post but got too long for a blog post. Hence, I’m providing this Crowdfunding Regulation A-plus Primer. Within the primer are links to:

  • Amendments to Regulation A
  • The statements of the SEC Commissioners that accompanied the final regulations
  • Title IV of the JOBS Act, which authorized changes to Regulation A

I am trying to provide not just technical details in the primer – which are important – but also practical advice about the cost of Regulation A+ offerings, the advantages and disadvantages, and examples.

If you have thoughts, as many of you will, I am eager to hear them and plan to supplement the Primer.

Questions? Let me know.

Regulation A+ Is Here

A Plus Walking the Red CarpetWell, that didn’t take long.

It’s been a mere 457 days since the SEC proposed regulations under Title IV of the JOBS Act, aka Regulation A+, and a mere 1,070 days since the JOBS Act was signed into law. Yet the SEC approved final regulations today, with just a few tweaks from the proposed rules. Regulation A+ will go into effect in roughly 60 days.

The most important provisions of the proposed regulations survived intact: companies will be allowed to raise up to $50 million – from anyone, not just accredited investors – without approval from state regulators. You will still have to file a thick offering statement with the SEC, and investors – both accredited and non-accredited – will still be limited to investing 10% of the greater of income or net worth. Nevertheless, I expect Regulation A+ to be used very widely, indeed to transform the Crowdfunding landscape.

I’ll be providing a link to the final regulations shortly (as well as a bunch of other useful links), as well as some thoughts about where Regulation A+ will be most useful.

Title III, anybody?

Questions? Let me know.

Scalability In Crowdfunding

Growing plant stepThe Crowdfunding market continues to grow rapidly, increasing in deal size, deal volume, and sophistication. The rapid growth will likely continue for the foreseeable future, as more investors and entrepreneurs learn about the opportunities. And the growth will accelerate if and when:

  • The SEC finalizes regulations under Title IV
  • Congress refurbishes Title III
  • Portals move toward pooled assets
  • Portals are created in more vertical markets
  • Deals become standardized across portals
  • Formally or informally, we get a secondary market for Crowdfunded investments

All those things will move the dial toward a larger, more robust Crowdfunding market. But to penetrate the mass market – to truly scale – Crowdfunding needs something more, and that thing is coming.

Like a telescope, a Crowdfunding portal has two ends: an investor end and a deal flow end. Today, the investor end of the telescope is almost infinitely scalable while the deal flow end has proven much more difficult. Even given the best technology and the best people, how do you push more deals through the narrow opening? More exactly, how do you perform effective due diligence on all those deals?

Look at the P2P sites, Lending Club and Prosper. They’re doing Crowdfunding, too, and they pushed more than $5 billion of consumer loans through their due diligence processes during 2014. They did it mainly by reducing due diligence to a series of algorithms. In fact, they perform so little due diligence of the old- fashioned variety that some states don’t allow them to sell securities.

Three factors have allowed Lending Club and Prosper to streamline due diligence and scale up:

  • They started with a built-in technology for determining a consumer’s creditworthiness: namely, a FICO score.
  • Starting with FICO scores, they created their own proprietary scoring systems using their own data. The more data they accumulate the better their scoring systems become, in a virtuous cycle.
  • They have educated their investors. Rather than allocate their entire investment to a single loan, investors diversify, trusting the averages.

In some respects what Lending Club and Prosper have done with consumer debt is no different than what Billy Beane did with baseball players: replacing a traditional process that relied on human expertise (scouts) with a new process that relies on data (sabermetrics).

At first glance, the typical Title II Crowdfunding site, whether real estate sites like Patch of Land and iFunding or venture capital sites like FundersClub, look a lot different than a P2P site. Fundamentally, however, they are in the same business. The question is not whether Title II (and Title III and IV) sites will move toward the P2P model, the question is is how quickly and in what ways.

I believe the convergence will happen from both ends.

First, portals are going to create the equivalent of FICO scores and the scoring systems of Prosper and Lending Club, even for complex real estate projects and hi-tech startups. Living in a world of big data, I believe this is not only possible but inevitable. As we speak, lots of smart people are looking at lots of data and trying to draw meaningful correlations between data and outcomes.

Is there a correlation between the FICO score of a real estate developer and the success of his next two projects? If an entrepreneur has had one successful exit is she more likely to have a second? If an angel has invested in three successful deals is he likely to have a fourth?

The world is flooded with data and fast computers. I believe Crowdfunding portals will crack the code, a little bit at a time, moving from a traditional, hands-on due diligence process to a data-driven, algorithmic process. Like old-time baseball scouts, those comfortable with the traditional processes are likely to cry foul, pointing out the inevitable gaps in statistics. They’ll be right in a narrow sense, but the world will move on nonetheless.

Second, because of the pressure to scale, portals will gravitate toward products that lend themselves to being scaled. It’s not a coincidence that Lending Club and Prosper sell consumer debt! The market suggests that real estate debt is likely to be the next product to scale, with real estate equity going to the back of the line. Going a step further, I’m guessing that the more difficult to crack the code in a given product, the higher the margin and the lower the volume.

If I knew exactly how the market will play out I wouldn’t be a lawyer! Nevertheless, it’s an incredibly exciting time.

Questions? Let me know.

Crowdfunding In Midtown

when pigs fly

Some say it will be a cold day in hell before Wall Street embraces Crowdfunding. If so, we were very nearly there Thursday, February 19th at the offices of the Citrin Cooperman in Midtown. Braving temperatures in the single digits and a gale blowing pedestrians north on Fifth Avenue, a large group of brave souls turned out to learn about Crowdfunding.

Citrin Cooperman, to my knowledge the first accounting firm to specialize in Crowdfunding, co-sponsored the panel discussion with iFunding, one of the earliest and certainly one of the best real estate Crowdfunding portals. The panel was moderated by Harmen Bakker, a partner in Citrin Cooperman’s real estate practice, and included William Skelley, the founder and CEO of iFunding, and Mark Mascia, the President of Mascia Development. Mark actually wore two hats: one, as a developer who has used Crowdfunding successfully to raise equity for his own deals; and two, as an investor in Crowdfunding deals offered by other sponsors.

As much as I try to know about Crowdfunding, I’m always amazed how much I can learn from the guys in the trenches, i.e., portals and developers.

To my delight, Mr. Skelley revealed that iFunding is exploring two new products:

  • A pooled-assets fund, where investors can invest in a category of real estate assets, rather than just a single project; and
  • A product that allows an investor to choose where in the capital stock he wants to invest (e.g., mezzanine debt or preferred equity), depending on his risk/yield preferences.

Wearing his developer’s hat, Mr. Mascia talked about the two Crowdfunding investment models, the first where investors come directly into the developer’s cap table and the second where the platform creates a special purpose vehicle for the investors. Each has advantages and disadvantages; for example, the SPV is great because the platform takes care of investor relations, but the direct-investment model gives the developer more “ownership” of the investor pool.

The audience was smart but troublesome, typical of New York. For example, someone asked “What happens when a Crowdfunding deal goes sideways?” As if that could ever happen.

To my mind, the most revealing fact is that iFunding – like the other top platforms, I believe – is funding deals within hours after they appear on the platform. Does this mean Crowdfunding investors are speed-readers, able to digest information about complex real estate projects between the main course and dessert? No. It means that Crowdfunding investors are relying on the portals. Legally and otherwise, that’s a really big deal.

By the time we finished the temperature outside had climbed to 3. Thank you to Citrin Cooperman and iFunding for a great morning.

Questions? Let me know.

Why the Jobs Act Broker-Dealer Exception Doesn’t Matter (Much)

US CApitol Building Illuminated at Night

Under section 201(c) of the JOBS Act, an electronic platform is not required to register as a broker-dealer solely because the platform offers securities under Title II, co-invests in the securities, or provides due diligence services or standardized documents. That’s good.

What Congress giveth, however, Congress can taketh away. The exemption from broker-dealer registration is not available if:

  • The platform or anyone associated with the platform receives compensation in connection with the purchase or sale of securities; OR
  • The platform helps to negotiate deals; OR
  • The platform requires issuers to use its standardized documents; OR
  • The platform is separately compensated for giving investment advice; OR
  • The platform or anyone associated with the platform takes possession of investor funds or securities; OR
  • The platform or anyone associated with the platform is disqualified under the “bad actor” rules.

Theoretically, the JOBS Act broker-dealer exemption paved the way for Crowdfunding platforms to sell securities free from the constraints of Depression-era securities laws. In practice, however, platforms have found it very difficult, almost impossible, to build a profitable business around the exemption because of all the gaps in the exemption and the list of things you can’t do.

For example:

  • To claim the exemption, a platform may not receive any compensation in connection with the purchase or sale of securities. That doesn’t just mean “transaction-based compensation” like commissions, it means any compensation. If the platform receives a carried interest or promote, for example, the exemption disappears.
  • From a business perspective it makes sense for the platform to employ an investor-relations specialist, someone to reach out to prospective investors. But if that person receives any compensation, even a salary, the exemption disappears.
  • Suppose the platform organizes a special-purpose entity for its investors and negotiates the terms of the deal with the issuer. Buzz! The exemption disappears.
  • The exemption doesn’t even apply to employees of the platform. If they engage in activities that are not protected by SEC Rule 3a4-1, they themselves could be required to register as broker-dealers.
  • Even if you qualify for the Federal exemption, it doesn’t mean you’re exempt from state broker-dealer registration.

Here’s how the SEC answered a question about the scope of the exemption:

QUESTION

May an entity, such as a venture capital fund or its adviser, operate an Internet website where it lists offerings of securities by potential portfolio companies (in compliance with Rule 506), co-invest in those securities with other investors, and provide standardized documents for use by issuers and investors, rely on Securities Act Section 4(b) to not register as a broker-dealer?

ANSWER

Yes. These activities are permitted under Section 4(b), subject to the conditions set forth in Section 4(b)(2), including the prohibition on receiving compensation in connection with the purchase or sale of securities. As a practical matter, we believe that the prohibition on compensation makes it unlikely that a person outside the venture capital area would be able to rely on the exemption from broker-dealer registration.

That’s pretty clear.

Now, the fact that a platform doesn’t qualify for the JOBS Act exemption doesn’t automatically mean the platform has to register as a broker-dealer. Whether the platform has to register as a broker-dealer would be tested under the body of laws stretching back 80 years. My point is that the JOBS Act exemption itself will be irrelevant for most platforms.

As someone once said, Crowdfunding is nothing more or less than the Internet come to the capital formation industry. Crowdfunding platforms sit astride the Internet pipeline directly connecting entrepreneurs with investors. Matching buyer to seller, they function as “brokers” in the most fundamental sense of the word.

In this sense, changing the business practices of a Crowdfunding platform to comply with the JOBS Act broker-dealer exemption is like pounding a round peg into a square hole. Pound long and hard enough and it’s possible. But it’s far better to run the platform business the way you want to run it, i.e., to make the most money. If you have to register as or affiliate with a broker-dealer, just do it.

Questions? Contact Mark Roderick.

Crowdfunding A REIT

REIT Blog Post Image

People sometimes ask “Will Crowdfunding replace REITs?” That’s not exactly the right question.

A REIT – an acronym for Real Estate Investment Trust – is not a function of real estate law or corporate law. A REIT is solely a function of tax law. Section 856 of the Internal Revenue Code defines a REIT as a corporation, trust, or association that satisfies certain criteria, including these:

  • At least 75% of the entity’s assets must consist of real estate assets or cash.
  • The entity must have at least 100 owners.
  • Interests in the entity must be transferable.
  • No more than 50% percent of the interests in the entity may be held by five or fewer individuals.

There is only one benefit of qualifying as a REIT: as long as he distributes at least 90% of its income to its owners, the entity itself is not subject to tax. Only the owners are subject to tax, when they receive dividend and capital gain distributions. The whole REIT industry is built around this tax benefit.

Because the REIT label is solely a function of tax law, not corporate or securities law, a REIT can be:

  • A publicly-registered company with publicly-traded securities; or
  • A publicly-registered company with privately-traded securities; or
  • A private company with privately-traded securities.

The second category of REIT is probably most common and, frankly, it is the category that has given REITs a bad name. Sold through the traditional broker-dealer channels, it is not unusual for the shares of publicly-registered, privately-traded REITs to carry a load of more than 10%, great for the broker, terrible for the customer. That’s why people say “Private REITS are sold, not bought.”

Compare a publicly-registered, privately-traded REIT to a garden-variety limited liability company owning real estate assets. In both cases, the entity itself pays no tax. And now, through Crowdfunding, the garden-variety LLC can solicit investors using the Internet, leading to transactions cost (load) much lower than the private REIT. Economically it’s a no-brainer: the Crowdfunded real estate LLC is better than the private REIT.

As I said, however, that’s really comparing apples with oranges. The REIT designation is about taxes; Crowdfunding is about how you find investors.

The real question is “Can I find investors for a private REIT using Crowdfunding, rather than through the traditional broker-dealer channels?” And the answer to that question is a resounding “Yes!” When you check the deals available at your favorite real estate Crowdfunding site tomorrow morning, you could well see a REIT.

And why would a sponsor offer a REIT rather than a garden-variety LLC? One reason – maybe the only reason – is tax reporting. An investor in an LLC receives a full-blown K-1 each year, and faces at least the theoretical risk of paying tax on “phantom” income. An investor in a REIT, on the other hand, receives only a simple 1099 and pays tax only on actual distributions.

Be that as it may, nobody should be paying a 10% commission. By connecting sponsors directly with investors, Crowdfunding promises to squeeze this kind of inefficiency out of the capital formation industry. Especially when Regulation A+ comes into effect, opening the market to non-accredited investors, there is every reason to believe that Crowdfunding will replace the traditional broker-dealer as the preferred method for distributing REIT shares.

Questions? Let me know.