Tag: crowdfunding

Why I’m Grateful This Thanksgiving

On By crowdfundattnyIn Uncategorized2 Comments
William Bradford leader of the pilgrims

My 10th-great grandfather was William Bradford, the leader of the Pilgrims. I’m grateful that he and his band of religious refugees made the trip and were saved from starvation by the native population.

I’m grateful for the wisdom of the American people and the resilience of their institutions.

I’m thankful for a culture that rewards risk-taking and innovation and that is slowly, haltingly, inexorably freeing itself of the prejudices of our collective past.

I’m grateful for American entrepreneurs who endlessly question the present and invent the future.

I’m grateful I declined an invitation to sit on OpenAI’s Board.

I’m grateful – I’m not joking – to the SEC for providing oversight for the most complex, dynamic, trusted capital markets in the world.

I’m grateful that FINRA. . . .

I’m grateful to my colleagues at Lex Nova Law for helping to build a flexible, modern law firm.

I’m grateful to live in a diverse, changing, sometimes-chaotic country where it often seems we disagree about everything (we don’t). Like others, I worry that so many Americans have chosen alternative realities and conspiracy theories, but I have faith that these afflictions, like others in our history, will prove temporary.

I’m grateful that even while the voices of hate are the loudest, those who yearn for peace – the majority – refuse to be drowned out.

I’m grateful that people can change their minds.

I’m grateful to participate in the fundamental rethinking of capitalism called Crowdfunding, making capital available where it has never been available before and making great investment opportunities available to more and more Americans.

I’m grateful to everyone in the Crowdfunding ecosystem, especially to Doug Ellenoff and others who worked to make the JOBS Act a reality.

I’m grateful for my clients, a diverse, energetic, endlessly-creative group of entrepreneurs who are making America better and in the process making my life infinitely more rewarding.

While complaining that my health insurance premiums went up again, I’m grateful they have not dropped to zero.

Thanks for reading everyone! I hope you enjoy your Thanksgiving as much as I intend to enjoy mine. As always, contact me if you have any questions.

MARK

financial statements in crowdfunding

Whose Financial Statements?

On By crowdfundattnyIn Filing Financial Statements & Other Reports, Reg CF4 Comments

Reg CF requires financial statements. To refresh your memory:

Those thresholds are based on the maximum you’re trying to raise. So if your “target amount” is $600,000 but you’re trying to raise up to $900,000, and this is your second Reg CF offering, you need audited statements. 

Now suppose you conducted your business as a sole proprietorship or an LLC until six months ago, when someone in Silicon Valley told you to convert to a C corporation. Your sole proprietorship or your LLC is a “predecessor” of your C corporation within the meaning of 17 CFR §230.405. Hence, under the Reg CF rules, your financial statements should include the results of the sole proprietorship or LLC. Which makes sense, given the purpose of the disclosure rules.

The same is true if your company intends to acquire another company. If you’re raising money to buy TargetCo Inc. then TargetCo Inc. is a “predecessor” of your company for purposes of Reg CF. Hence, you should include the financial statements of TargetCo Inc. Which also makes sense.

Especially for small companies, financial statements represent one of the biggest impediments to Reg CF. The rules around predecessors make the impediment that much higher.

Questions? Let me know.

Republican Dysfunction Could Benefit Crowdfunding

Republican Dysfunction Could Benefit Crowdfunding — REALLY

On By crowdfundattnyIn JOBS ActLeave a comment

During my lifetime we’ve never seen political dysfunction like the dysfunction we’re seeing among House Republicans. Coming just as American leadership could be most helpful, the dysfunction is dangerous, a national embarrassment, all that and much more. Yet it might prove good for Crowdfunding.

An ally of Representative Kevin McCarthy, Representative Patrick T. McHenry of North Carolina was designated “interim Speaker” when McCarthy was dethroned. Nobody knows what “interim Speaker” means or what he or she can do, but now, with Republicans unable to agree on an actual Speaker and no other way out of the cul-de-sac, the idea is circulating to give Rep. McHenry some real power and try to run the place. 

Unprecedented? Sure. But so is the dysfunction among Republicans.

Well, it just so happens that Rep. McHenry was the leading proponent of the JOBS Act, the 2012 law that launched Crowdfunding in all its current forms. Ever since, he has also been a leading proponent of improving the law, making it easier for entrepreneurs to raise capital and for ordinary Americans to participate.

Crowdfunding isn’t exactly high up on the list of priorities for either party. But when you’re Speaker of the House of Representative, or “interim Speaker with special powers,” you get to do stuff. If Rep. McHenry holds his position, I wouldn’t be shocked to see changes to the JOBS Act attached to other legislation, even a bill to help Israel and Ukraine.

To quote someone else, there are two things you never want to see being made:  sausage and law. If the dysfunction among Republicans can help Crowdfunding and the American economy, so be it.

Questions? Let me know.

audience asking questions by raising hands

The Series LLC And Crowdfunding Vehicle: A Legal Explanation And A Funding Portal WSP

On By crowdfundattnyIn Crowdfunding Portals, Crowdfunding Vehicles, Series LLCLeave a comment

Lots of people have asked for a legal explanation in response to my previous post about crowdfunding vehicles and the series LLC. Plus, many funding portals will want a Written Supervisory Procedure (WSP) addressing the issue.

Here’s the legal reason why a “series” of a limited liability company can’t serve as a crowdfunding vehicle.

Rule 3a-9(b)(1) (17 CFR §270.3a-9(b)(2)) defines “crowdfunding vehicle” as follows:

Crowdfunding vehicle means an issuer formed by or on behalf of a crowdfunding issuer for the purpose of conducting an offering under section 4(a)(6) of the Securities Act as a co-issuer with the crowdfunding issuer, which offering is controlled by the crowdfunding issuer.

You see the reference to the crowdfunding vehicle as an “issuer” and a “co-issuer.”

Now here’s a C&DI (Compliance & Disclosure Interpretation) issued by the SEC in 2009:

Question 104.01

Question: When a statutory trust registers the offer and sale of beneficial units in multiple series, or a limited partnership registers the offer and sale of limited partnership interests in multiple series, on a single registration statement, should each series be treated as a separate registrant?

Answer: No. Even though a series of beneficial units or limited partnership interests may represent interests in a separate or discrete set of assets – and not in the statutory trust or limited partnership as a whole – unless the series is a separate legal entity, it cannot be a co-registrant for Securities Act or Exchange Act purposes.

Note the conclusion:  “. . . .unless the series is a separate legal entity, it cannot be a co-registrant for Securities Act or Exchange Act purposes.”

A “series” of a limited liability company is not a separate legal entity. Under section 218 of the Delaware Limited Liability Company Act and corresponding provisions of the LLC laws of other states, if you keep accurate records then the assets of one series aren’t subject to the liabilities of another series. That makes a series like a separate entity, at least in one respect, but it doesn’t make the series a separate legal entity. A motorcycle is like a car in some respects but it’s not a car.

That’s the beginning and end of the story:  a crowdfunding vehicle must be an “issuer”; a series of a limited liability company can’t be an “issuer” because it’s not a separate legal entity; therefore a series of a limited liability company can’t be a crowdfunding vehicle.

Maybe someone will challenge the application of the C&DI in court. Until that happens the result is pretty clear.

A couple more things.

First, this same C&DI is the basis of many successful offerings under Regulation A. Suppose, for example, that you’d like to use Regulation A to raise money for real estate projects (or racehorses, or vintage cars, or anything else), but you don’t want to spend the time and money to conduct a Regulation A offering for each project. This same C&DI allows sponsors to treat the “parent” limited liability company as the only “issuer” in the Regulation A offering even while allowing investors to choose which project they’d like to invest in and segregating the projects in separate “series” for liability purposes. If each series were a separate issuer that wouldn’t work.

Second, suppose a funding portal creates a new series for each offering and has conducted 25 offerings (that is, 25 series for 25 crowdfunding vehicles), each with a different type of security (one for each offering). Because we know that only the “parent” can be an issuer:

  • They’ve violated Rule 3a-9(a)(3) because the parent has issued more than one class of securities; and
  • They’ve violated Rule 3a-9(a)(6) because there is no one-to-one correspondence between the securities of the parent and the securities of the crowdfunding issuer.

To quote Simon & Garfunkel, any way you look at this you lose.

If you’re a funding portal, you’ll probably be asked by FINRA to add a WSP dealing with crowdfunding vehicles. Here’s an example.

Questions? Let me know. 

Reinvigorate American Capitalism Through Crowdfunding

How Can Sponsors Raise More Money When A Deal Goes South?

On By crowdfundattnyIn PodcastsLeave a comment

When a real estate deal goes bad as many are doing now, should limited partners have the right of first refusal to invest rescue capital on the same terms as anything the sponsor can bring in to save the deal?

My podcast guest today, attorney Mark Roderick, calls it ‘pre-emptive rights’ and, as you will hear, he explains it can make the best of a bad situation.

But what does that look like in reality?

Here’s the script:

***

Email #1: From Sponsor to Limited Partners (Investors):

Subject Line: We’re stopping distributions and need more money from you

Sorry investors, we screwed up because we [select from the following]

  1. Didn’t manage the property aggressively enough to account for a downturn.
  2. Underwrote debt levels to eternally low interest rates on variable rate terms and now can’t afford the doubling of our debt costs.
  3. Our original loan is maturing, the value of the property has gone down, debt costs have skyrocketed, rent growth is not what we assumed in our proforma, and the bank will only lend us 60% of our original loan amount.
  4. Cap rates are now nearing 6% not the 4% we projected.
  5. Thought this time was different.

In sum, we need you to pony up more equity so we can avoid losing the property to the bank.

***

Email #2: From Sponsor to Rescue Capital fund (pref equity, mezz debt, whatever)

Subject Line: Have we got a deal for you!

Our offering docs allow us to bring in additional capital under any terms. Our bank will only lend us 60% of the original loan amount so we need to shore up the difference. Can you help us.

***

Email #3: From Rescue Fund to Sponsor

Subject Line: We’re in!

Sure. We’ll come in with the 40% you need. We want second position behind the bank (ahead of your existing LPs) and if you miss proforma targets or fail to pay us on time, we’’ll remove you as GP and wipe out your LPs’ equity.

***

Email #4: From Sponsor to Investors

Subject Line: Great news! We’ve found some rescue capital.

You get first right of refusal on the terms we just got to protect your investment.

Terms are that your new capital will come in ahead of your old [or dilute it out completely], and if we screw up again, you get to remove us as GP.

Please accept these terms or someone else gets them.

Oh, and by the way, the Rescue Capital wants all or nothing so we need unanimous agreement from all Investors or we go with the Rescue Capital.

***

Is this an ‘offer’ or a ‘threat’?

Or is the dialogue different somehow?

At the end of the day, does having pre-emptive rights (right of first refusal) really mean anything?

Advocating for Intellectual Honesty in the Legal Sphere With Mark Roderick

On By crowdfundattnyIn Crowdfunding Interview, Crowdfunding Interviews, PodcastsLeave a comment

In this episode… Why is intellectual honesty important for lawyers? By prioritizing what is morally correct over personal gain, lawyers strengthen the lawyer-client relationship and contribute to a fair and just society. Upholding the integrity of the legal profession and ensuring that justice is served depends on attorneys’ commitment to ethical principles — even when they don’t benefit from what they advocate.

As a math major, Mark Roderick was exposed to the world of math proofs and abstract thinking. Realizing he desired to work with people and help solve problems in the real world, he applied to law school. Unlike other professionals in the industry, Mark has a passion for doing what is right at all times — and seeks out others who value intellectual honesty over financial gain. Respecting your integrity, both in your profession and personal life, strengthens your relationships as individuals grow to trust you have their best interest in mind.

In this episode of 15 Minutes, Chad Franzen sits down with Mark Roderick, Principal Partner at Lex Nova Law, to discuss how sharing the same values impacts your work environment. Mark also talks about what inspired him to pursue a career in law, how his background in math has contributed to his career, and how he started his crowdfunding blog.

Resources mentioned in this episode:

Chad Franzen on LinkedIn – https://www.linkedin.com/in/chadfranzen

Gladiator Law Marketing – https://gladiatorlawmarketing.com

Mark Roderick on LinkedIn – https://www.linkedin.com/in/markroderick/

Lex Nova Law – https://www.lexnovalaw.com/

Crowdfunding & FinTech Law Blog – https://crowdfundingattorney.com/

chess board raising capital

Improving Legal Documents In Crowdfunding: Give Yourself The Right To Raise More Money

On By crowdfundattnyIn Crowdfunding, Crowdfunding LawsLeave a comment

Interest rates have gone up, real estate valuations have gone down, banks have disappeared, and investors have become more cautious. Many real estate sponsors, faced with looming loan repayments, wonder how they’re going to raise more equity.

They might be surprised when they check the Operating Agreement. Too often, Operating Agreements prohibit the sponsor from raising more equity without the consent of a majority of the LPs or even a single large investor. And getting that consent might not be easy or even possible, for several reasons:

  • Existing investors might not agree that new money is needed.
  • Existing investors might be unrealistic about market conditions, thinking the new equity can have the same terms as the existing equity.
  • Existing investors hate being diluted.
  • Existing investors might prefer to contribute the new money themselves on terms the sponsor believes are exorbitant.
  • A large investor might be angling to buy the property for itself at a fire sale price.

When times are good and the Operating Agreement is signed those possibilities seem far-fetched. Then you get to an April 2023.

Knowing that an April 2023 is always on the horizon, sponsors should negotiate hard at the outset for the right to raise more equity. They won’t always get it because people who write very large checks usually get what they want (that’s why we call it “capitalism”). But in my experience, too many sponsors give away the right too easily or don’t even think about it.

If the sponsor has the right to raise more equity, how do we protect the original investors? What’s to stop the sponsor from raising equity from her own family or friends on terms very favorable to them and very unfavorable to existing investors, even if the equity isn’t needed? 

The answer is “preemptive rights.” If the sponsor wants to raise more equity, she must offer the new equity to existing investors first. Only if they don’t buy it may she offer it to anyone else.

Preemptive rights aren’t perfect. The main flaw is that Investor Jordan, who had money to invest when the deal was launched, has fallen on harder times and doesn’t have money to participate in the new round. Or Mr. Jordan does have the money to participate but is no longer accredited and therefore can’t participate. 

Even with the flaws, preemptive rights generally allow for the equitable resolution of a difficult situation, much better than the alternatives most of the time.

You can see my form here. Let me know if you think it can be improved.

NOTE:  Sponsors might also consider “capital call” provisions, i.e., provisions allowing them to demand more money from investors if needed. In my opinion, however, they typically do more harm than good, driving away investors at the outset while not providing enough cash when it’s needed. And in practical terms, a large investor who would balk at allowing the sponsor to raise more equity certainly won’t agree to an unlimited capital call.

Questions? Let me know. 

Watch Out For Oregon’s Securities Laws

On By crowdfundattnyIn Securities LawsLeave a comment

Oregon is a beautiful state and its people among the friendliest and most caffeinated in the country. But watch out for its securities laws.

A New York law firm found out the hard way in a case called Houston v. Seward Kissel, LLP. The firm prepared offering documents for a company that was later sued by an Oregon investor claiming fraud. The unhappy investor sued the law firm under ORS 59.115(3), which imposes liability on anyone who “participates or materially aids” in the sale of a security. The judge allowed the case to go forward without even requiring the plaintiff to show the law firm knew about the alleged fraud. 

In another case under the same statute, Ainslie v. Spolyar, the court granted summary judgment against a junior associate in a law firm that prepared offering documents, where the issuer allegedly violated the terms of the offering documents.

How dare they sue lawyers!

But lawyers aren’t the only ones potentially on the hook. Other potential targets include finders, agents, funding portals, accountants, financial advisors, employees of the issuer, even banks that extend financing to investors. If you touch the offering, you’re potentially liable. And under the statute, everyone is “jointly and severally” liable, meaning everyone, even the lowly associate in Ainslie v. Spolyar is liable for 100% of the damages.

The only defense is to show that you didn’t know of the facts underlying the claim (e.g., the fraud or violations of Oregon’s securities laws) and couldn’t have known of them “in the exercise of reasonable care.” That’s a very tough burden for two reasons:

  • Suppose the issuer has committed fraud. Proving that you didn’t know about it is one thing. Proving that you couldn’t have discovered it is extremely difficult because there it is, in broad daylight today.
  • Because the burden is on the defendant, these cases will rarely be dismissed on summary judgment. That means you’re in for a long, expensive fight.

The Oregon statute doesn’t matter too much for issuers because issuers are always liable for fraud and other wrongdoing and know all the facts. But for third parties, including websites and funding portals, at least consider excluding Oregon investors from your offerings, if possible.

Questions? Let me know. 

WATCH OUT FOR RULE 10b-9 IN CROWDFUNDING OFFERINGS

Watch Out For Rule 10b-9 In Crowdfunding Offerings

On By crowdfundattnyIn Crowdfunding OfferingsLeave a comment

Section 10(b) of the Exchange Act prohibits use of “any manipulative or deceptive device or contrivance” in connection with the purchase or sale of a security.

The SEC has issued several regulations under section 10(b), prohibiting deceptive practices in various specific circumstances. By far the best-known and most-feared is 17 CFR §240.10b-5, aka Rule 10b-5, which makes it unlawful:

  • To employ any device, scheme, or artifice to defraud,
  • To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; and
  • To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.

But Crowdfunding issuers and funding portals should know about another regulation issued by the SEC under section 10(b), Rule 10b-9.

On its face Rule 10b-9 is straightforward. It says (I’m paraphrasing) that if you set a minimum amount for an offering and don’t reach the minimum, you have to return everyone’s money. 

Back in the old days, pre-JOBS Act, when many educated Americans spoke a dialect that rarely included the phrase “100%,” almost every offering had a stated minimum. For example, say a developer wanted to buy a multifamily project for $5M, of which $3.5M would be financed and $1.5M would be raised as equity. In her equity offering the developer would state $1.5M as the minimum raise because without the full $1.5M the deal isn’t viable. If she didn’t raise the full $1.5m by the deadline everyone who had invested would get their money back.

Pretty simple, right?

Now suppose that the developer is three days from her deadline and has raised $1,490,000. To meet the $1.5M minimum she writes a $10,000 check herself. 

Under the language of Rule 10b-9 itself, as well as early SEC interpretations of the rule, that should be fine. The developer has reached the $1.5M minimum, albeit with $10,000 of her own money, so the project is viable and investors are getting the economic deal they thought they were getting.

But in a case called SEC v. Blinder, Robinson & Co., Inc. the court discovered a different rationale for Rule 10b-9. The purpose wasn’t just to ensure an offering was fully funded, but also to assure each investor that others had made the same investment decision:

“Each investor is comforted by the knowledge that unless his judgment to take the risk is shared by enough others to sell out the issue, his money will be returned.”

This language, which implicitly appealed to the “wisdom of the crowd” long before Crowdfunding was a thing, is now cited by the SEC, FINRA, and other courts interpreting Rule 10b-9.

Now we see the developer’s $10,000 investment in a different light. She wrote the $10,000 check not because she’s willing to take the same economic deal as other investors but because she’s entitled to fees from the deal and this is her livelihood. No other investors can take comfort from that!

If this is true for a multifamily real estate project it is true many times over for the local brewery raising money using Reg CF. Although Alfred is unrelated to the founder of the brewery, he invested mainly because he likes getting free beer on Thursday nights – one of the perks – and enjoys the comradery, not because he’s expecting a great financial return. No investor can take comfort from that! 

With little better to do, lawyers worry about this kind of thing. Although I think the risk of enforcement action by the SEC is small, out of an abundance of caution I would consider two disclosures in every offering:

  • A disclosure that investments made by the sponsor and its affiliates will count toward the offering minimum (the “target offering amount” in Reg CF); and
  • A disclosure that investors shouldn’t take comfort from investments made by others.

This is what makes the list of Risk Factors so long:  we keep adding things and rarely take anything out.

100%

Questions? Let me know. 

Don't Use Lead Investors and Proxies in Crowdfunding Vehicles

Don’t Use Lead Investors And Proxies In Crowdfunding Vehicles

On By crowdfundattnyIn Crowdfunding, Crowdfunding VehiclesLeave a comment

Some high-volume portals use a crowdfunding vehicle for every offering, and in each crowdfunding vehicle have a “lead investor” with a proxy to vote on behalf of everyone else. This is a very bad idea.

Lead investors are a transplant from the Silicon Valley ecosystem. Having proven herself through  successful investments, Jasmine attracts a following of other investors. Where she leads they follow, and founders therefore try to get her on board first, often with a promise of compensation in the form of a carried interest.

A lead investor makes sense in the close-knit Silicon Valley ecosystem, where everyone knows and follows everyone else. But like other Silicon Valley concepts, lead investors don’t transplant well to Reg CF – like transplanting an orange tree from Florida to Buffalo.

For one thing, Reg CF today is about raising money from lots of people who don’t know one another and very likely are making their first investment in a private company. Nobody is “leading” anyone else.

But even more important, giving anyone, lead investor or otherwise, the right to vote on behalf of all Reg CF investors (a proxy) might violate the law. 

A crowdfunding vehicle isn’t just any old SPV. It’s a very special kind of entity, created and by governed by 17 CFR § 270.3a-9. Among other things, a crowdfunding vehicle must:

Seek instructions from the holders of its securities with regard to:

  • The voting of the crowdfunding issuer securities it holds and votes the crowdfunding issuer securities only in accordance with such instructions; and
  • Participating in tender or exchange offers or similar transactions conducted by the crowdfunding issuer and participates in such transactions only in accordance with such instructions.

So let’s think of two scenarios.

In one scenario, the crowdfunding vehicle holds 100 shares of the underlying issuer. There are 100 investors in the crowdfunding vehicle, each owning one of its shares. A question comes up calling for a vote. Seventy investors vote Yes and 30 vote No. The crowdfunding vehicle votes 70 of its shares Yes and 30 No.

Same facts in the second scenario except the issuer has appointed Jasmine as the lead investor of the crowdfunding vehicle, with a proxy to vote for all the investors. The vote comes up, Jasmine doesn’t consult with the investors and votes all 100 shares No.

The first scenario clearly complies with Rule 3a-9. Does the second?

To appreciate the stakes, suppose the deal goes south and an unhappy investor sues the issuer and its founder, Jared. The investor claims that because the crowdfunding vehicle didn’t “seek instructions from the holders of its securities,” it wasn’t a valid crowdfunding vehicle, but an ordinary investment company, ineligible to use Reg CF. If that’s true, Jared is personally liable to return all funds to investors.

Jared argues that because Jasmine held a proxy from investors, asking Jasmine was the same as seeking instructions from investors. He argues that even without a crowdfunding vehicle – if everyone had invested directly – Jasmine could have held a proxy from the other Reg CF investors and nobody would have blinked an eye.

When the SEC issues a C&DI or a no-action letter approving that structure, terrific. Until then I’d recommend caution.

Questions? Let me know.