Tag: crowdfunding

How To Do It Wrong In Crowdfunding

On By crowdfundattnyIn Crowdfunding, SECLeave a comment

Missed chancesAn SEC enforcement order came across my desk that illustrates how to operate a Crowdfunding portal if you want to meet people who work for the government. The order, with names removed, is available here.

As a preface, everything I know about this portal comes from the SEC’s enforcement order. It is possible that the SEC’s allegations are false – even though the portal agreed to a settlement, without admitting wrongdoing – and that the portal actually was in full compliance with all applicable laws.

With that said, here’s what the portal did, or is alleged to have done:

  • In May 2013, before “general solicitation” was legal, it established a website that listed investments for anyone to see, i.e., not behind a firewall.
  • Although the site included a disclaimer that investments were not available to U.S. persons, the portal did not take steps – for example, using IP addresses – to enforce this rule. In fact, more than 50 individuals who listed the U.S. as their place of residence were allowed to register, and several actually invested.
  • The portal allowed at least some of the U.S. investors to self-certify that they were “accredited investors,” without even explaining what that meant.
  • The portal charged a commission for raising capital without being registered as a broker-dealer.

The violations alleged by the SEC do not fall within an ambiguous gray area. They are just flat-out over the line. And note the timing: May 2013, after the no-action letters to FundersClub and AngelList, in which the SEC gave the world a road map for legal Crowdfunding.

I can only guess this portal was represented by one of my competitors. 🙂

That’s a joke, of course. Much more likely, the company wasn’t represented by anybody and just did what seemed to make sense, without knowing they were violating anything.

The portal was incorporated and operated offshore. Nevertheless, it was subject to U.S. securities laws because it solicited U.S. investors.

Fortunately, everything this company wanted to do can be done legally and at a very low cost. If you want to raise money exclusively offshore, then exclude U.S. investors. If you want to raise money from the U.S. and offshore, use Regulation S. If you’re raising money from U.S. investors use VerifyInvestor.com or Crowdentials to verify they’re accredited. If you’re going to charge a commission use an online broker-dealer. If you want to allow investors to self-certify, then use Rule 506(b) and hide your deals behind a firewall. Spend just a little money on a lawyer and stay off the SEC’s Christmas card list.

Questions? Let me know.

Integration Of Regulation A+ Offerings With Other Offerings

On By crowdfundattnyIn Crowdfunding, Crowdfunding Laws, Crowdfunding Speaking Engagements, Regulation ALeave a comment

Yesterday I spoke about Regulation A+ on a panel at the National Press Club in Washington, D.C. One topic was whether offerings under Regulation A+ would be “integrated” with other offerings, including offerings under Title II.

The word “integration” describes a legal concept in U.S. securities laws, where two offerings that the issuer intends to keep separate are treated as one offering instead. For example, I raise $1 million in an offering under Rule 506(b), where I admit 19 non-accredited investors. Needing more money, I start another offering under Rule 506(b) a month later – and for the same project – and admit 23 more non-accredited investors. Wrong! The SEC says those two offerings are “integrated” and now I’ve exceeded the limit of 35 non-accredited investors.growth captial summit

Today, entrepreneurs can raise money under Title II Crowdfunding only from accredited investors. Under Regulation A+ they’ll be able to raise money from non-accredited investors as well, vastly expanding the potential investor base. Unlike a Title II offering, however, where accredited investors can invest an unlimited amount, an investor in a Regulation A+ offering, accredited or non-accredited, will be limited to investing 10% of his or her income or net worth.

The question naturally arises, why not do a Regulation A+ offering for non-accredited investors while at the same time doing a Title II offering for accredited investors, thus maximizing the amount raised from everyone?

The answer, unfortunately, is integration. The two offerings would be treated as one, and they would both fail as a result.

But along with that bad news, the integration rules under the proposed-but-not-adopted Regulation A+ regulations offer good news as well:

  • A Regulation A+ offering will not be integrated with an offering that came first. Thus, I can raise money in a Title II offering, accepting an unlimited amount from accredited investors, and the day after that offering ends conduct a Regulation A+ offering for non-accredited investors.
  • A Regulation A+ offering will not be integrated with an offering to foreign investors under Regulation S. The two can happen simultaneously.
  • A Regulation A+ offering will not be integrated with an offering that begins more than six months after the Regulation A+ offering ends.
  • A Regulation A+ offering will not be integrated with a Title III offering, even if they happen at the same time.

Another takeaway from the conference is that the SEC plans to finalize the proposed regulations under Regulation A+ by the end of the year (this year). Issuers and portals, get ready.

Questions? Let me know.

Videos In Crowdfunding

On By crowdfundattnyIn Crowdfunding, Videos in CrowdfundingLeave a comment

In this post, I wondered when we would see videos in Crowdfunding.

The video above was sent to me by Carolyn Collins of HUB International Northeast, a benefits consultant. Her company sells a health insurance product packaged as a “private exchange,” complementing the government exchanges operated under Obamacare.

In just over two minutes, the video explains:

  • What’s wrong with the current health insurance market
  • How the private exchange operates
  • Why the private exchange is the best of both worlds for employers

Take a look, and ask yourself at the end whether you’d like to know more (you will).

Of course, I’m not trying to sell health insurance. But if a video can explain our crazy health insurance system and offer an alternative in two minutes, then an effective video on equity Crowdfunding should be easy!

Questions? Let me know.

The Series LLC

On By crowdfundattnyIn Crowdfunding, LLCsLeave a comment

Series LLCI bought the iPhone 6 and get a chill using ApplePay. I was one of the earliest adapters of the limited liability company, way back when. I like new, useful things. But I don’t like the “series LLC” all that much.

A series LLC is a regular limited liability company with compartments inside, like a room divided into cubicles. Each compartment is called a “series.” By law, the assets and liabilities of each series stand by themselves, meaning that the creditors of one series cannot get at the assets of a different series. The series LLC was first adopted in Delaware, naturally, but has now been adopted by a handful of other states, including Texas and Nevada.

The series LLC was supposed to make life simpler. For example, a real estate developer with five projects could form just one LLC and divide it into five series, each with different assets, liabilities, and even owners. The developer would pay to form only one entity, pay only one annual registration fee, file only one tax return, etc.

The state tax authorities threw the first wrench into the gears by declaring that each series would be treated as a separate entity for franchise tax purposes.

But the real problem with the series LLC is that nobody knows whether it will work if challenged in court, especially in a bankruptcy court. If one series incurs a liability, will a bankruptcy court respect the state LLC statute saying that creditors can’t get to the assets of another series? A bankruptcy court is supposed to respect state property laws but. . . .the truth is nobody really knows.

Until that critical question is answered by a court, I can’t recommend using a series LLC. They’re convenient, but the convenience comes with too much risk for my taste.

I bought the iPhone 6, not the 6 plus.

Questions? Let me know.

Why Financial Firms Are Joining The Crowd, By Joy Schoffler, Principal of Leverage PR

On By crowdfundattnyIn Crowdfunding, Guest BlogLeave a comment

Crowdfunding is a marketing vehicle. Sure, it’s a great way for entrepreneurs to raise money and a great way for investors to find institutional-quality deals. But above all Crowdfunding is about marketing. And that’s why financial firms – venture capital firms, investment banks, private equity firms, and others – are moving into the space.

When I was the director of a private equity firm, we spent our time doing what all investment firms do, working to broaden the firm’s investor base and find more and better deals. Because of the legal constraints that have been in place since the early 1930s, we (and everyone else) had to rely on private networks. While we developed a large private network, the process of manual network development is slow by design.

With the passage of the JOBS Act, everything has changed. Now, investment firms can take what was essentially a marketing function and move it online, using tools and marketing best practices to build their networks.

Today I run a public relations firm, Leverage PR, which works at the intersection of technology and finance. With my background Fin-Tech I’ve naturally gravitated to Crowdfunding and serve in leadership roles in the industry, including serving on the board of CFIRA, the leading trade association. From that vantage point I can see the trends in both technology and finance. Without doubt, one of the most pronounced trends is that financial firms are moving into Crowdfunding, with established players launching their own portals or partnering with others.

Here are the six leading factors encouraging financial firms to join the Crowd:

Reason #1: Adding to the Capital Stack – Raising money is hard. Even established firms with a base of institutional money need smaller investors to augment the capital stack or fill holes. If done properly, with the right public relations, launching a Crowdfunding platform is a wonderful way to get in front of new bases of potential investors and prove expertise in an industry.

Reason #2: Marketing Automation – Private equity has, by and large, stayed in the marketing Stone Age. Some of the biggest firms still use spreadsheets to track current investors and monitor prospective investors. In contrast, the best Crowdfunding platforms have embraced the power of marketing automation. They set up investors on drip marketing campaigns from the minute they sign up. They learn what each investor likes and doesn’t like using data from the site. They convert small investors into larger investors. They use technology to create the economies of scale that make dealing with smaller investors possible and profitable.

Reason #3: Improve and Automate Investor Relations – When many of us in private equity first heard of Crowdfunding we imagined a nightmare of dealing with hundreds of investors. The opposite is true. A Crowdfunding platform provides a better customer platform. In fact, we’re seeing established private equity firms launch portals solely for investor relations post close.

Reason #4: More and Better Deals – Early entrants into the space who are marketing their Crowdfunding portal are not only seeing a deeper and wider investor pool but are also seeing increased deal flow. Even if firms are launching only to do their own deals they are generating interest and traffic from other in their space who are bringing them deals.

Reason #5: Partnerships – Innovative companies are partnering with Crowdfunding platforms across a number of sectors to identify potential acquisition targets, effectively using the platforms as quasi-outsourced R&D. We believe this trend, already begun by firms like Healthios Exchange and CircleUp, will continue and intensify. R&D is expensive and risky. Crowdfunding offers a better and cheaper alternative. View More: http://votiveimage.pass.us/leveragepr

Reason #6: Get Ahead of the Curve – Technology is changing everything and private equity is no exception. While we don’t know what private equity will look like in 10 years, we’re sure it will be online.

As we look forward to 2015, I’m excited about what lies ahead. While it’s true that the JOBS Act opened a world of opportunities for new, innovative players, it also gives established financial firms the tools to expand market reach, lower minimum investments, and bring technology to manual processes.

Joy Schoffler, principal of Leverage PR, is a nationally recognized author and speaker on financial services communications. An active member of the Crowdfunding community Joy sits on the board of CFIRA.org a leading Crowdfunding advocacy association. Before launching Leverage, Joy served as director of acquisitions for the Inc. award-winning private equity firm The PPA Group. Joy has written for a number of publications including Entrepreneur.com, Social Media Monthly and MarketingProfs. She is also a contributing author for the Wiley-published Bloomberg Media book “Crowdfunding: The Ultimate Guide to Raising Capital on the Internet.”

Improving Legal Documents In Crowdfunding: Model White Label Contract

On By crowdfundattnyIn Crowdfunding, Legal DocumentsLeave a comment

I see a lot of contracts between would-be Crowdfunding portals and “white label” portal software providers. It would help the industry, in my opinion, if everyone used or at least started with the same agreement. So I’ve drafted a model agreement, accessible as a Microsoft Word document here.

An agreement for a white label platform is a software license agreement. I’ve drafted more software license agreements than I can count, representing both licensors and licensees. That gives me a very good feel for what’s important, what’s not so important, and what’s fair.

My model agreement is designed to be a very fair document. It protects what’s important to the white label provider, and also protects what’s important to the would-be portal licensing the platform. It is also designed to be a comprehensive document, meaning it covers what’s important without overkill. I hope it’s easy to read and understand, as legal contracts go. And it’s completely flexible in terms of what the customer gets and how much the customer pays.

Multi-million-dollar portal businesses are being created based on the relationship created by this contract. It’s not a back-of-the-napkin kind of thing.

Because there could be special situations that the model agreement doesn’t cover, white label providers and their customers should have this model agreement reviewed by their own lawyers. Also, I haven’t provided a Service Level Agreement, because response times might vary significantly among white label providers.

But using one standard agreement should make things easier for everyone. Fewer transaction costs, less friction, greater certainty, faster to market. That’s what the industry needs.

Questions? Let me know.

Crowdfunding At NAIOP Conference In Denver

On By crowdfundattnyIn Crowdfunding, Crowdfunding Speaking Engagements, Speaking EngagementsLeave a comment

Denver Rocky Mtns

NAIOP,  the largest commercial real estate organization in the country (the world?), held its Development ’14 conference in Denver this week. I had the pleasure of moderating a Crowdfunding panel that included Darren Powderly, the Founder of CrowdStreet, and Adam Hooper, the founder of RealCrowd.

A few observations:

—  Institutional money is flooding the U.S. real estate market, especially the primary U.S. markets. One foreign investor, the Norwegian sovereign wealth fund, has about $1.2 trillion of capital (North Sea oil) and is committed to investing $9 billion per year into real estate assets. This is both an opportunity and a challenge for real estate Crowdfunding: an opportunity because of the capital; but also a challenge because capital is already so readily available.

—  Good real estate deals are in short supply. Fund managers were scouring the conference floor for opportunities like kids in an Easter egg hunt.

—  Crowdfunding remains a small blip on the radar screen. Many attendees I spoke with hadn’t heard the term. Our panel attracted an audience of about 30, while a panel on Logistics and another on Alternative Financing each attracted at least 200.

—  Yet our audience was, by far, the most curious and enthusiastic I saw. When we had to stop, 10 minutes past our allotted time, there were still half a dozen raised hands.

—  The conference was about real estate deals – finding them, developing them, financing them. And not just any deals, but the best institutional-quality real estate deals in the world. Yet because those deals are reserved for institutions, very few of the hundreds of attendees who spent three days talking about deals can invest in the deals. How long can that last in an Internet-empowered world?

It was a great conference and I want to thank NAIOP for inviting me to attend. The potential for Crowdfunding is enormous. Next year, I bet we get 100.

Questions? Let me know.

Improving Legal Documents In Crowdfunding: Tax Allocations

On By crowdfundattnyIn Crowdfunding, Crowdfunding Laws, JOBS Act, Legal Documents, Tax, UncategorizedLeave a comment

Because I started life as a tax shelter lawyer, I’m especially sensitive to how income and losses are allocated within partnerships and limited liability companies (limited liability companies are taxed as partnerships). Agreements in the Crowdfunding space leave something to be desired.

As we all know, partnerships are not themselves taxable entities. The items of income and loss of the dollar handshakepartnership “flow through” and are reported on the personal tax returns of the owners. Allocating income and losses is simple when you have one class of partnership interest and everything is pro rata, e.g., you get 70% of everything and I get 30%. It becomes a lot more complicated in the real world.

Say, for example:

  • The sponsor of a deal takes a 30% promote in operating cash flow after investors received an 8% annual preferred return.
  • On a sale or refinancing, the sponsor takes a 40% promote after the investors receive a 10% internal rate of return.
  • In the early years of the deal the project generates ordinary losses, then generates cash flow sheltered by depreciation deductions, then generates section 1231 gain.

The allocation of income and loss in a partnership is governed by section 704(b) of the Internal Revenue Code. Long ago, the IRS issued regulations under section 704(b) that use the concept of “capital accounts” to determine whether a given allocation has “substantial economic effect.” Rules within rules, exceptions within exceptions, definitions within definitions, the section 704(b) regulations are a delight for the kind of person (I admit it) who wasn’t necessarily the coolest in high school.

For years afterward, tax shelter lawyers vied with one another to include as many of the rules and definitions of the regulations as possible in their partnership agreements, verbatim. That lasted until we recognized that (1) no matter how hard we tried, it was impossible to be 100% sure that the allocations would come out right; and (2) there was a better way.

The better way is to give management the right to allocate income on a year-to-year basis, with the mandate that the allocation of income should follow the distribution of cash. To wit:

Company shall seek to allocate its income, gains, losses, deductions, and expenses (“Tax Items”) in a manner so that (i) such allocations have “substantial economic effect” as defined in Section 704(b) of the Code and the regulations issued thereunder (the “Regulations”) and otherwise comply with applicable tax laws; (ii) each Member is allocated income equal to the sum of (A) the losses he or it is allocated, and (B) the cash profits he or it receives; and (iii) after taking into account the allocations for each year as well as such factors as the value of the Company’s assets, the allocations likely to be made to each Member in the future, and the distributions each Member is likely to receive, the balance of each Member’s capital account at the time of the liquidation of the Company will be equal to the amount such Member is entitled to receive pursuant to this Agreement. That is, the allocation of the Company’s Tax Items, should, to the extent reasonably possible, following the actual and anticipated distributions of cash, in the discretion of the Manager. In making allocations the Manager shall use reasonable efforts to comply with applicable tax laws, including without limitation through incorporation of a “qualified income offset,” a “gross income allocation,” and a “minimum gain chargeback,” as such terms or concepts are specified in the Regulations. The Manager shall be conclusively deemed to have used reasonable effort if it has sought and obtained advice from counsel.

Even today, I see partnership agreements that devote pages to the allocation of tax items. The approach in the paragraph above is much simpler and, even more important, much more likely to achieve the right result.

Questions? Let me know.

SEC Subcommittee Reports On Accredited Investor Definition

On By crowdfundattnyIn Accredited Investor, Crowdfunding, Crowdfunding Laws, Dodd-Frank Act, Entrepreneurs, JOBS ActLeave a comment

The Dodd-Frank Act instructs the SEC to evaluate the definition of “accredited investor” and, if it sees fit, to modify the definition “as the Commission may deem appropriate for the protection of investors, in the public interest, and in light of the economy.”

As regular readers of this blog know, I’ve been optimistic that the SEC would not take this opportunity to kill Title II Crowdfunding and every other kind of Rule 506(c) private placement (which includes most angel investing as well) by creating an onerous new definition. The report issued recently by a SEC subcommittee, while surprising in some respects, doesn’t dent my optimism.

The subcommittee report makes two important, though obvious, points:

  • The Committee does not believe that the current definition as it pertains to natural persons effectively serves this function in all instances.
  • The current definition’s financial thresholds serve as an imperfect proxy for sophistication, access to information, and ability to withstand losses.

The existing definition is imperfect, yes. The question is, what to do about it?

Although the report does not provide a clear answer to that question, the good news, from my perspective, is that the report does not suggest merely indexing the current thresholds ($200,000 of income, $1 million of net worth) to inflation, which would disqualify most accredited investors and send the private placement market into a tailspin. Instead, the report seeks a standard that will address both financial sophistication and the ability to withstand loss.

The report suggests two specific measures of financial sophistication: the series 7 securities license and the Chartered Financial Analyst designation. Following the lead of the United Kingdom, the report also suggests that those with proven investment experience – for example, a member of an angel investing group – might qualify. Finally, the report suggests, as others have before, that the SEC could develop an examination for the purpose of qualifying investors.

Declining a suggestion from several quarters, the report does not include lawyers or accountants as investors who should be deemed to have financial sophistication.

The reports veers a little off track, in my opinion, when it speculates that, in conjunction with changing the definition of accredited investor, the SEC could limit the amount invested by each investor – following the 10% limit of Regulation A+, for example. That kind of limitation would be new to Rule 506 offerings.

In my Model State Crowdfunding law, I use a definition of accredited investors that includes lawyers, accountants, and anyone with the license from FINRA, as long as the lawyer, accountant, or license-holder has income of at least $75,000. Recognizing the imperfection of any definition, I think that strikes about the right balance. Bolt on an SEC-administered examination option and we’re right there with the subcommittee report.

All in all, it’s good to see the SEC, once again, thinking through the issues carefully. We can see the light at the end of the tunnel.

Questions? Let me know.

Crowdfunding Meets P2P Lending in San Francisco

On By crowdfundattnyIn Crowdfunding, Crowdfunding Speaking Engagements, JOBS Act, P2P Lending, Speaking EngagementsLeave a comment

Golden Gate_purchased

For me, the CFGE Crowdfund Banking and Lending Summit in San Francisco was both eye-opening and provocative.

Andrea Downs and her team assembled a terrific group of speakers, including:

  • Richard Swart of Berkeley, who described the past, present, and future of equity Crowdfunding around the world with his normal clarity and depth of data.
  • Ron Suber of Prosper, who demonstrated in 45 minutes how he’s brought Prosper back from a near-death experience to create a $1+ billion business.
  • Nikul Patel of Lending Tree, who described the business model behind P2P lending better than I’ve ever heard it described.
  • John Berlau of the Competitive Enterprise Institute, who put modern Crowdfunding into a historical framework reaching back to Henry Ford and beyond, asking “Why doesn’t government just get the hell out of the way?”

To say I was honored to be among that group of speakers is an understatement.

I spend a lot of time thinking where equity Crowdfunding is headed. You couldn’t sit through this conference without wondering where equity Crowdfunding and P2P lending are going to intersect. We’ll explore that further in future posts, maybe even get some experts to chime in, but if you’re a Title II portal it sure does seem there are lessons in the P2P model.

I was thinking about that in a bar on Thursday evening when Travis Ishikawa crushed a three run shot to send the Giants to the World Series, and again on Saturday, while I pedaled a bicycle in blazing sunlight across the Golden Gate bridge and through Sausalito, Mill Valley, and Tiburon. There are worse places to think.

Thanks to Andrea Downs and her CFGE team for a great event.

Questions? Let me know.