Think Twice Before Giving Crowdfunding Investors Voting Rights

I attend church and think of myself as a kind person, yet I discourage issuers from giving investors voting rights. Here are a few reasons:

  • Lack of Ability:  Even if they go to church and are kind people, investors know absolutely nothing about running your business. If you assembled 20 representatives in a room and talked about running your business, you would (1) be amazed, and (2) understand why DAOs are such a bad idea.
  • Lack of Interest:  Investors invest because they want to make money and/or believe in you and your vision. They aren’t investing because they want to help run your business.
  • Irrelevant Motives:  Investors will have motives that have nothing to do with your business. For example, an investor who is very old or very ill might want to postpone a sale of the business to avoid paying tax on the appreciation.
  • Bad Motives:  Investors can even have bad motives. An unhappy investor might consciously try to harm your business or, God forbid, a competitor might accumulate shares in your company.
  • Lack of Information:  Investors will never have as much information about your business as you have. Even if they go to church, are kind to animals, and have your best interests at heart, they are unable to make the same good decisions you would.
  • Drain on Resources:  If you allow investors to vote you’ll have to spend lots of time educating them and trying to convince them to do what you think is best. Any time you spend educating investors is time you’re not spending managing your business.
  • Logistics:  Even in the digital age it’s a pain tabulating votes from thousands of people.
  • Mistakes:  When investors have voting rights you have to follow certain formalities. If you forget to follow them you’re cleaning up a mess.

I anticipate two objections:

  • First Objection:  VCs and other investors writing big checks get voting rights, so why shouldn’t Crowdfunding investors?
  • Second Objection:  Even if they don’t help run the business on a day-to-day basis, shouldn’t investors have the right to vote on big things like mergers or issuing new shares?

As to the first objection, the answer is not that Crowdfunding investors should get voting rights but that VCs and other large investors shouldn’t. The only reason we give large investors voting rights is they ask for them, and our system is called “capitalism.”

Before the International Venture Capital Association withdraws its invitation for next year’s keynote, I’m not saying VCs and other large investors don’t bring anything but money to the table. They can bring broad business experience and, perhaps most important, valuable connections. A non-voting Board of Advisors makes a lot of sense.

The second objection is a closer call. On balance, however, I think that for most companies most of the time it will be better for everyone if the founder retains flexibility.

To resolve disputes between the owners of a closely-held business we typically provide that one owner can buy the others out or even force a sale of the company. Likewise, while we don’t give Crowdfunding investors voting rights we should try to give them liquidity in one form or another, at least the right to sell their shares to someone else.

Give investors a good economic deal. Give them something to believe in. But don’t give them voting rights.

Questions? Let me know.

Proposed Changes To Taxation Of Carried Interests

The Inflation Reduction Act of 2022 promises big changes to how America responds to global warming, aka climate change. But if enacted in its current form, it will also change how real estate sponsors and hedge fund managers are taxed on carried interests.

A “carried interest” or “promote” is what the sponsor gets for putting the deal together. In a typical hedge fund, the manager receives a 2% annual management fee plus 20% of the profits. In the syndication of an apartment building, the deal sponsor might receive 30% of the profits after investors have received a preferred return of 7% and all their money back. The 20% of the hedge fund manager and the 30% of the real estate sponsor are the “carried interest.”

For many years gains from carried interests were taxed as capital gains rather than ordinary income. This favorable tax treatment attracted widespread criticism, from Warren Buffett among others, and is often referred to derisively as the “carried interest loophole.”

As described here, section 1061 was added to the Internal Revenue Code to close, or at least narrow, the loophole. Under section 1061, gains from carried interests generally are treated as ordinary income if the interest is held less than three years. But in a loophole within a loophole, capital gain was preserved for most real estate syndications by excluding from section 1061 gains from the sale of property used in a trade or business, such as the ownership and operation of an apartment building.

The Inflation Reduction Act of 2022 includes two important changes to section 1061. One, the three year holding period will be extended to five years. Two, the exception for property used in a trade or business will be eliminated.

As someone famous once said, one man’s loophole is another man’s castle (or something like that). For many real estate sponsors, the carried interest is the primary source of income: annual management fees pay the bills, but the carried interest sends the kids to college. Increasing the tax rate on the carried interest by 20 percentage points or more is not trivial.

The capital gain rate is still available if the property is held for five years, but many real estate projects contemplate shorter holding periods.

If the changes are enacted in their current form, I expect sponsors will adjust the economic deal with investors. Most likely, we will see the carried interest percentage increase from around 30% to around 50%, at least for transactions where the holding period will be less than five years. For that matter, we will probably see longer holding periods for both hedge funds and real estate, as the market adjusts.

Senator Sinema of Arizona is a longtime fan of the carried interest loophole and hasn’t yet weighed in on the Inflation Reduction Act. You can bet she’s getting lots of phone calls as we speak.

Questions? Let me know.

Improving Legal Documents In Crowdfunding: New Risk Factor For Supreme Court Ruling

It appears the Supreme Court is about to strike down Roe v. Wade, allowing states to regulate or outlaw abortion. Many states are poised to do so with varying degrees of severity. 

In his draft opinion in Dobbs v. Jackson Women’s Health Organization, Justice Alito states that the decision would not affect other rights, like the right to gay marriage (Obergefell v. Hodges), the right to engage in homosexual relationships (Lawrence v. Texas), or the right to contraception (Griswold v. Connecticut). In my opinion, you should take Justice Alito’s assurance with a large spoonful of salt.. Theoretically, all these cases rest on a constitutional right to privacy. If you knock that pillar down for one right it falls for all of them. On a practical level, Justice Alito himself voted against gay marriage and I have little doubt that there are at least five votes to overturn all these precedents.

Some states are already considering bans on contraception and surely challenges to gay marriage are close on the horizon.

When the COVID-19 pandemic swept the country, companies raising capital had to add one or more risk factor to their offering materials, describing how the pandemic could harm their businesses. I believe the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization calls for the same thing.

Imagine a SAAS company in Austin, Texas, looking to recruit talented young engineers. Imagine the company’s ideal candidate:  a woman who just graduated from Stanford with a specialty in AI. If she has one job offer from the company in Austin and another from a company in Oregon it isn’t hard to see why the Texas company would have a competitive disadvantage, all other things being equal.

Companies are already trying to mitigate the risk. For example, Starbucks has announced free travel to employees to states where abortion is legal. But even that might not eliminate the risk. Do women want to travel out of state for medical care? And, in any case, many states where abortion is or will be illegal are trying to make it illegal to travel out of state for an abortion

Whatever the realities of the marketplace, our job as securities lawyers is to make investors aware of risks so our clients can’t be sued afterward. I suggest the following or something like it in the offering materials of any company where recruitment is important

State Laws Might impair the Company’s Ability to Recruit: The U.S. Supreme Court [seems poised to overturn] [has recently overturned] women’s privacy rights in health care decisions set forth in Roe v. Wade. Moreover, the reasoning used by the Court in overturning Roe v. Wade suggests that other constitutional rights could also become subject to restriction by the states, including the right to gay marriage and use of contraception. Texas, where the Company’s headquarters are located, has enacted strict laws regulating abortion and its political climate is such that it might seek to limit or take away other rights as well. These state laws could impair the Company’s ability to recruit and retain personnel and could put the Company at a competitive disadvantage with companies in other states.

Questions? Let me know.

SEC Proposes New Restrictions For Private Fund Advisers

The SEC recently proposed new rules for private fund advisers. If you raise and/or manage money from other people, you should probably pay attention.

A private fund adviser is an investment adviser who provides advice to private funds. A “private fund” is any issuer that would be treated as an “investment company” if not for the exemptions under section 3(c)(1) (no more than 100 investors) or section 3(c)(7) (all qualified purchasers) of the Investment Company Act.

  • EXAMPLE:  Nikki Chilandra forms an LLC of which she is the sole manager, raises money from her private network of investors (no more than 100), and uses the money to buy a limited partnership interest in one real estate deal. The LLC is a private fund, and Nikki is likely a private fund adviser.
  • EXAMPLE:  Jerry Cooperman forms an LLC of which he is the sole manager, raises money from his private network of investors (without limit), and uses the money to buy a duplex, which is rented to tenants. The LLC is not a private fund because it owns real estate, not securities. Hence, Jerry is not a private fund adviser.

In general, investment advisers are required to register either with the SEC or with the state(s) where they do business. But an advisor who provides advice only to private funds and manages assets of less than $150 million is exempt from registration with the SEC, and many states have similar exemptions. In fact, the SEC has expanded the definition of “private funds” for these purposes to include an issuer that qualifies for any exclusion under the Investment Company Act, not just the exemptions under sections 3(c)(1) and 3(c)(7).

An advisor who qualifies for the private fund exemption, like Nikki, is often referred to as an “exempt reporting adviser.” That’s because while she doesn’t have to register as an investment adviser, she does have to file reports with the SEC (an abbreviated Form ADV) and probably with the state where the fund is located also.

All of that is just to say that investment advisers who provide advice to private funds fall into two categories:  those who are required to register with the SEC and those who are not registered but still have to file reports. The SEC proposals affect both.

The following proposals would affect only advisers registered with the SEC:

  • Advisers would be required to provide investors with quarterly statements with information about the fund’s performance, fees, and expenses. Advisers would be required to obtain an annual audit for each fund and cause the auditor to notify the SEC upon certain events.
  • Advisers would be required to obtain fairness opinions in so-called adviser-led secondary transactions.

The following proposal would affect all advisers, including Nikki:

  • An adviser couldn’t charge for services not provided. For example, if an asset were sold, the adviser couldn’t charge for the advisory fees that would have been due over the next two years.
  • An adviser couldn’t charge the fund for expenses incurred in a regulatory examination of the adviser.
  • An advisor couldn’t reduce her clawback by the amount of any taxes.
  • An adviser couldn’t limit her liability for a breach of fiduciary duty, willful misfeasance, bad faith, recklessness, or even negligence.
  • An adviser couldn’t allocate fees among funds on a non-pro rata basis.
  • An adviser couldn’t borrow money from the fund.
  • An adviser couldn’t give preferential rights to redemption or preferential information rights to some investors if it would have a material negative effect on other investors.
  • An adviser couldn’t give other preferential rights to some investors without full disclosure to all investors.

I’ll just mention two of those items that come up frequently.

First, general partners typically seek to protect themselves from lawsuits brought by investors. Delaware and other states allow the general partner to disclaim all traditional fiduciary duties and adopt a “business judgment” standard in their place. If the SEC’s proposals are adopted, general partners acting as private fund advisers will no longer be allowed to protect themselves in this way and will be liable for a breach of fiduciary obligations as well as simple negligence.

NOTE:  Sponsors like Nikki wear more than one hat. They provide investment advice but perform other duties as well, like deciding whether to admit new LPs and on what terms. The SEC’s proposals would require Nikki to remain liable for negligence when she’s wearing her investment adviser hat but not when she’s wearing her other hats. The LLC Agreement could and should make that distinction.

Second, general partners typically enter into “side letters,” giving some limited partners a better economic deal than others – either a lower promote or a higher preferred return. These arrangements will still be allowed if the SEC’s proposals are adopted, but only if the terms are disclosed to everyone, which is not typically done today.

Questions? Let me know.

Using A SAFE In Reg CF Offerings

The SEC once wanted to prohibit the Simple Agreement for Future Equity, or SAFE, in Reg CF offerings. After a minor uproar the SEC changed its mind, and SAFEs are now used frequently. I think prohibiting SAFEs would be a mistake. Nevertheless, funding portals, issuers, and investors should think twice about using (or buying) a SAFE in a given offering.

Some have argued that SAFEs are too complicated for Reg CF investors. That’s both patronizing and wrong, in my opinion. Between a SAFE on one hand and common stock on the other, the common stock really is the more difficult concept. As long as you tell investors what they’re getting – especially that SAFEs have no “due date” – I think you’re fine.

The reason to think twice is not that SAFEs are complicated but that a SAFE might not be the right tool for the job. You wouldn’t use a hammer to shovel snow, and you shouldn’t use a SAFE in circumstances for which it wasn’t designed.

The SAFE was designed as the first stop on the Silicon Valley assembly line. First comes the SAFE, then the Series A, then the Series B, and eventually the IPO or other exit. Like other parts on the assembly line, the SAFE was designed to minimize friction and increase volume. And it works great for that purpose.

But the Silicon Valley ecosystem is very unusual, not representative of the broader private capital market. These are a few of its critical features:

  • Silicon Valley is an old boys’ network in the sense that it operates largely on trust, not legal documents. Investors don’t sue founders or other investors for fear of being frozen out of future deals, and founders don’t sue anybody for fear their next startup won’t get funded. Theranos and the lawsuits it spawned were the exceptions that prove the rule.
  • The Silicon Valley ecosystem focuses on only one kind of company: the kind that will grow very quickly, gobbling up capital, then be sold.
  • Those adding the SAFE at the front end of the assembly line know the people adding the Series A and Series B toward the back end of the assembly line — in fact, they might be the same people. And using standardized documents like those offered by the National Venture Capital Association ensures most deals will look the same. Thus, while SAFE investors in Silicon Valley don’t know exactly what they’ll end up with, they have a good idea.

The point is that SAFEs don’t exist in a vacuum. They were created to serve a particular purpose in a particular ecosystem. To name just a couple obvious examples, a company that won’t need to raise more money or a company that plans to stay private indefinitely probably wouldn’t be good candidates for a SAFE. If it’s snowing outside, don’t reach for the hammer.

If you do use a SAFE, which one? The Y Combinator forms are the most common starting points, but in a Reg CF offering, you should make at least three changes:

  1. The Y Combinator form provides for conversion of the SAFE only upon a later sale of preferred stock. That makes sense in the Silicon Valley ecosystem because of course the next stop on the assembly line will involve preferred stock. Outside Silicon Valley, the next step could be common stock.
  2. The Y Combinator form provides for conversion of the SAFE no matter how little capital is raised, as long as it’s priced. That makes sense because on the Silicon Valley assembly line of course the next step will involve a substantial amount of capital from sophisticated investors. Outside Silicon Valley you should provide that conversion requires a substantial capital raise to make it more likely that the raise reflects the arm’s-length value of the company.
  3. The Y Combinator form includes a handful of representations by the issuer and two or three by the investor. That makes sense because nobody is relying on representations in Silicon Valley and nobody sues anyone anyway. In Reg CF, the issuer is already making lots of representations —Form C is really a long list of representations — so you don’t need any issuer representations in the SAFE. And dealing with potentially thousands of strangers, the issuer needs all the representations from investors typical in a Subscription Agreement.

The founder of a Reg CF funding portal might have come from the Silicon Valley ecosystem. In fact, her company might have been funded by SAFEs. Still, she should understand where SAFEs are appropriate and where they are not and make sure investors understand as well.

Questions? Let me know.

The SEC Can Stop Your Regulation A Offering At Any Time

The SEC has two powerful tools to stop your Regulation A offering anytime.

Rule 258

Rule 258 allows the SEC to immediately suspend an offering if

  • The exemption under Regulation A is not available; or
  • Any of the terms, conditions, or requirements of Regulation A have not been complied with; or
  • The offering statement, any sales or solicitation of interest material, or any report filed pursuant to Rule 257 contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements made, in light of the circumstances under which they are made, not misleading; or
  • The offering involves fraud or other violations of section 17 of the Securities Act of 1933; or
  • Something happened after filing an offering statement that would have made Regulation A unavailable had it occurred before filing; or
  • Anyone specified in Rule 262(a) (the list of potential bad actors) has been indicted for certain crimes; or
  • Proceedings have begun that could cause someone on that list to be a bad actor; or
  • The issuer has failed to cooperate with an investigation.

If the SEC suspends an offering under Rule 258, the issuer can appeal for a hearing – with the SEC – but the suspension remains in effect. In addition, at any time after the hearing, the SEC can make the suspension permanent.

Rule 258 gives the SEC enormous discretion. For example, the SEC may theoretically terminate a Regulation A offering if the issuer fails to file a single report or files late. And while there’s lots of room for good-faith disagreement as to whether an offering statement or advertisement failed to state a material fact, Rule 258 gives the SEC the power to decide.

Don’t worry, you might think, Rule 260 provides that an “insignificant” deviation will not result in the loss of the Regulation A exemption. Think again: Rule 260(c) states, “This provision provides no relief or protection from a proceeding under Rule 258.”

Rule 262(a)(7)

Rule 262(a)(7) is even more dangerous than Rule 258.

Rule 258 allows the SEC to suspend a Regulation A offering if the SEC concludes that something is wrong. Rule 262(a)(7), on the other hand, allows for suspension if the issuer or any of its principals is “the subject of an investigation or proceeding to determine whether a. . . . suspension order should be issued.”

That’s right: Rule 262(a)(7) allows the SEC to suspend an offering merely by investigating whether the offer should be suspended.

Effect on Regulation D

Suppose the SEC suspends a Regulation A offering under either Rule 258 or Rule 262(a)(7). In that case, the issuer is automatically a “bad actor” under Rule 506(d)(1)(vii), meaning it can’t use Regulation D to raise capital, either.

In some ways, it makes sense that the SEC can suspend a Regulation A offering easily because the SEC’s approval was needed in the first place. But not so with Regulation D, and especially not so with a suspension under Rule 262(a)(7). In that case, the issuer is prevented from using Regulation D – an exemption that does not require SEC approval – simply because the SEC is investigating whether it’s done something wrong. That seems. . . .wrong.

Conclusion

As all six readers of this blog know, I think the SEC has done a spectacular job with Crowdfunding. But what the SEC giveth the SEC can taketh away. I hope the SEC will use discretion exercising its substantial power under Rule 258 and Rule 262(a)(7).

Use A Third Party To Verify Investors Under Rule 506(c)

An issuer raising capital under Rule 506(c) must take “reasonable steps” to verify that investors are accredited. Rule 506(c)(2)(ii) specifies several steps that will be deemed reasonable, like getting a letter from the investor’s accountant.

Looking to save money, some issuers are tempted to verify investors themselves rather than using a third-party service like VerifyInvestor. For most issuers I think that’s a bad idea.

Suppose a non-accredited investor gets into your deal by forging a letter from an accountant, whiting out the numbers on her tax return, or because someone in your office makes a mistake. The deal goes south, investors lose money, and a clever plaintiff’s lawyer learns about the non-accredited investor. “The offering was illegal!” he claims. “Investors get their money back!”

You say, “But the letter from the accountant!” The plaintiff’s lawyer says, “You should have called the accountant’s office!”

You say, “The numbers on the tax return were whited out!” The plaintiff’s lawyer says, “The new numbers are in a different font!”

You say, “Everyone makes mistakes!” The plaintiff’s lawyer says, “But this mistake wasn’t reasonable!”

What you have are (1) a big headache, and (2) a lawsuit that’s not getting thrown out on summary judgement. Sorry for all the exclamation points but that’s the tenor of litigation.

Now suppose you used a reputable third party to verify investors. The plaintiff’s lawyer, who is working on a contingency, writes his demand letter and you respond “Sorry, I used XYZ Corp., an industry leader in investor verification.” I suspect the plaintiff’s lawyer doesn’t take the case. I think there’s a very strong argument that by hiring XYZ Corp. you have automatically taken “reasonable steps.”

For $50 per investor or whatever it is, that seems to me about as close to a no-brainer as they come.

Three points.

One, I said this is true for most issuers. A large issuer with lots of investors and an established, professionally-managed investor relationship department might be able to absorb the new responsibilities with proper training.

Two, Rule 506(c) is the only offering exemption that requires verification. In offerings conducted under Rule 506(b), Regulation A, and Reg CF, issuers are allowed to take investors at their word.

Three, suppose an issuer using Rule 506(c) does nothing to ensure that investors are accredited but they’re all accredited anyway. The issuer can still be sued successfully by that clever plaintiff’s lawyer. The obligation to take “reasonable steps” is independent of the requirement that all investors must be accredited.

Questions? Let me know.

New Podcast – In-Depth Commercial Real Estate

In this episode Paul speaks to Crowdfunding attorney Mark Roderick about Crowdfunding in real estate. They go in-depth how the JOBS act that created crowdfunding changed funding portals, advertising, and where the future of raising capital is and what sponsors should focus on and be careful with.

In-Depth Commercial Real Estate

In-Depth Commercial Real Estate is an exploration of the people, ideas, strategies, and methods behind commercial real estate. In each episode, we’ll talk to an expert about a particular topic: from CMBS and cap. rates to innovation and hiring strategies, and everything in between.

Disclaimer: This real estate podcast is for informational and educational purposes only and does not imply suitability. The views and opinions expressed by the presenters are their own. The information is not intended as investment advice.For any inquiries or comments, you can reach us as info@indepthrealestate.com.

Questions? Let me know.

Using Reg CF To Raise Money For A Non-U.S. Business

To use Reg CF (aka Title III Crowdfunding), an issuer must be “organized under, and subject to, the laws of a State or territory of the United States or the District of Columbia.” That means a Spanish entity cannot issue securities using Reg CF. But it doesn’t mean a Spanish business can’t use Reg CF.

First, here’s how not to do it.

A Spanish entity wants to raise money using Reg CF. Reading the regulation, the Spanish entity forms a shell Delaware corporation. All other things being equal, as an entity “organized under, and subject to, the laws of a State or territory of the United States,” the Delaware corporation is allowed to raise capital using Reg CF. But all other things are not equal. If the Delaware corporation is a shell, with no assets or business, then (i) no funding portal should allow the securities of the Delaware corporation to be listed, and (ii) even if a funding portal did allow the securities to be listed, nobody in her right mind would buy them.

Here are two structures that work:

  • The Spanish business could move its entire business and all its assets into a Delaware corporation. Even with no assets, employees, or business in the U.S., the Delaware corporation could raise capital using Reg CF, giving investors an interest in the entire business.
  • Suppose the Spanish company is in the business of developing, owning, and operating health clubs. Today all its locations are in Spain but it sees an opportunity in the U.S. The Spanish entity creates a Delaware corporation to develop, own, and operate health clubs in the U.S. The Delaware corporation could raise capital using Reg CF, giving investors an interest in the U.S. business only.

NOTE:  Those familiar with Regulation A may be excused for feeling confused. An issuer may raise capital using Regulation A only if the issuer is managed in the U.S. or Canada. For reasons that are above my pay grade, the rules for Reg CF and the rules for Regulation A are just different.

Questions? Let me know.

Bumblebee and flowers

SEC Proposes Limited Exemptions For “Finders”

In theory, only broker-dealers registered under section 15 of the Exchange Act are allowed to receive compensation for connecting issuers with investors. In practice, the world of private securities includes lots of folks we refer to as “finders.” Like bumblebees, these folks should be unable to fly according to the laws of physics but many plants couldn’t survive without them.

Because of the disconnect between theory and reality, industry participants have been urging the SEC for years to develop exemptions for finders.

The SEC just proposed exemptions that would allow some finders to operate legally, i.e., to receive commissions and other transaction-based compensation from issuers.

The SEC proposes two tiers of Finders 

  • Tier 1 Finders would be limited to providing the contact information of potential investors to an issuer in one offering per 12 months. A Tier I Finder couldn’t even speak with potential investors about the issuer or the offering.
  • Tier II Finders could participate in an unlimited number of offerings and solicit investors on behalf of an issuer, but only to the extent of:
    • Identifying, screening, and contacting potential investors;
    • Distributing offering materials;
    • Discussing the information in the offering materials, as long as the Funder doesn’t provide investment advice or advice about the value of the investment; and
    • Arranging or participating in meetings with the issuer and investor.

A Tier II Finder would be required to disclose her compensation to prospective investors up front – before the solicitation – and obtain the investor’s written consent.

The Limits to the Proposed Finders

  • The Finder must be an individual, not an entity.
  • The Finder must have a written agreement with the issuer.
  • The proposed exemptions apply only to offerings by the issuer, not secondary sales.
  • Public companies (companies required to file reports under section 13 or section 15(d) of the Exchange Act) may not use Finders.
  • The offering must be exempt from registration.
  • The Finder may not engage in general solicitation.
  • All investors must be accredited.
  • The Finder may not be an “associated person” of a broker-dealer.
  • The Find may not be subject to statutory disqualification.

The SEC issued an excellent graphic summarizing the proposed exemptions

Because they are entities, the typical Crowdfunding portal can’t qualify as a Finder under the SEC’s proposals. And because the proposals don’t allow general solicitation, a Finder who is an individual can’t create a website posting individual deals.

But the no-action letters to Funders Club and AngelList that kick-started the Crowdfunding industry (no pun intended) will invite many Tier 2 Finders to take their businesses online. Under the proposals and the no-action letters, it seems that a Tier 2 Finder could legally create a website offering access to terrific-but-unnamed offerings, but give investors access to the offerings only after registering and going through a satisfactory KYC process per the CitizenVC no-action letter.

A Step Forward for Crowdfunding

Many finders and issuers will jump for joy at the new proposals, while others will be disappointed that the SEC drew the line at accredited investors. In a Regulation A offering or a Rule 506(b) offering open to non-accredited investors, the law requires very substantial disclosure, especially in Regulation A. The SEC must believe that non-accredited investors are especially vulnerable to the selling pressure that might be applied by a finder.

Nevertheless, like the SEC’s proposals to expand the definition of accredited investor, the proposals about finders are a step forward.

CAUTION:  As of today these proposals are just proposals, not the law.

Questions? Let me know.