Mark Roderick appeared on School for Startups Radio with Jim Beach to discuss the current state of crowdfunding and how the industry is progressing. He discusses the booming real estate crowdfunding industry and how the rest of the crowdfunding space measures up.
The IRS just issued more proposed regulations under §1400Z-2 of the Internal Revenue Code, dealing with investments in qualified opportunity zones and qualified opportunity funds. Some highlights:
In general, a QOF must spend at least as much to rehabilitate a building as it paid for the building itself. But this rule doesn’t apply to a building that’s been vacant for five years. This presents an enormous incentive to acquire and rehabilitate vacant properties (that are located in QOZs).
The tax benefits associated with QOFs are available only to an “active trade or business.” The new regulations provide that (1) the ownership and operation (including leasing) of real estate can qualify as an “active trade or business,” for these purposes, but (2) a triple-net lease of real estate is not an “active trade or business.”
To qualify for tax benefits, a corporation or partnership must derive at least 50% of its gross income from the active conduct of a business within a QOZ. The new regulations provide three safe harbors and a facts-and-circumstances test to make this 50% calculation.
In general, at least 90% of the assets of a QOF must be in the form of “qualified opportunity zone property.” The new regulations allow the QOF to ignore investments made by investors in the QOF during the preceding six months in making this calculation, as long as the new investments are held in cash, cash equivalents, or certain short-term debt instruments This rule will make it far easier for QOFs to satisfy the 90% test while continuing to raise capital.
Similarly, if a QOZ sells assets and reinvests the proceeds in other assets, then the proceeds of the sale will be treated as “qualified opportunity zone property” for purposes of the 90% test, as long as they are held in cash, cash equivalents, or certain short-term debt instruments and reinvested within 12 months. Of course, any gain recognized by the QOZ from the sale will be taxed to investors.
The new regulations provide that an investment in a QOF may be made with cash or other property, but not by performing services for the QOF.
The new regulations provide alternative approaches to valuing the assets of a QOF, both for making the 90% calculation and for determining whether substantially all of the QOFs assets are in a QOZ.
A “qualified opportunity zone business” must own “qualified opportunity zone property,” and “qualified opportunity zone property” does not include property purchased from a related party. But under the new regulations, it can include property leased from a related party, under certain circumstances.
By investing in a QOF, a taxpayer can defer recognizing capital gains for tax purposes until 12/31/2026. But if an “inclusion event” occurs before 12/31/2026, the taxpayer must recognize the capital gain at that time. Selling the interest in the QOF is an obvious example of an “inclusion event.” The new regulations provide many more, less obvious examples, like giving the interest in the QOF to a charity, or receiving a distribution from the QOF that exceeds the taxpayer’s basis.
After holding a QOF for 10 years, a taxpayer may exclude all capital gains from the appreciation of the interest in the QOF. The new regulations provide that the taxpayer doesn’t have to sell her interest in the QOF to benefit from the exclusion; the exclusion also applies if the QOF sells its assets and distributes the gains.
A ”qualified opportunity zone business” means a trade or business in which substantially all of the tangible property is “qualified opportunity zone business property.” The new regulations clarify that in this instance, “substantially all” means 70%.
“Qualified opportunity zone business property” means tangible property used in the trade or business of the QOF if, during substantially all of the QOF’s holding period for such property, substantially all of the use of the property was in a QOZ. Believe it or not, the new regulations provide that the first instance of “substantially all” in that sentence means 90% and the second instance means 70%.
The new regulations illustrate why tax lawyers so look forward to new tax legislation, and are so popular at cocktail parties.
Raising money without begging investors is no easy task for startups. At times, help from a third-party individual is needed to make it happen. But how do you know if you are legally paying brokers to raise capital and not breaking any law or guides set by the Securities and Exchange Commission?
In this interview, Mark Roderick explains what a broker is, and the legal process that raising money entails. He cites examples of the repercussions of hiring an unlicensed broker-dealer, gives advice on the lessons he has learned in the industry, and touches on his blog that tackles crowdfunding.
The JOBS Act was signed by President Obama on May 5, 2012. Last month, a client of mine, Tapestry Senior Housing, raised about $13.6 million of common equity for a project in Moon Township outside Pittsburgh. Tapestry is an affiliate of Tapestry Companies, LLC, a national firm that operates as an owner, manager and developer of senior and multifamily properties. The Moon Township project involved the adaptive re-use of an existing Embassy Suites hotel.
This was the largest raise in the history of the CrowdStreet platform and, in my opinion, an important milestone for the Crowdfunding industry.
Not long ago, real estate Crowdfunding was limited to single-family fix-and-flips. At the annual meeting of NAIOP in Denver, in October 2014, I moderated a panel on Crowdfunding with Adam Hooper of RealCrowd and Darren Powderly of CrowdStreet, as it so happens. The audience for our panel was the smallest of the conference — but at the same time probably the youngest and most enthusiastic.
The size of the deals grew and high-quality sponsors like Tapestry began to notice. Now, when word gets out that someone has raised $13.6 million of equity, I believe we’re going to see a spike in interest from a broad spectrum of sponsors in every industry sector.
You can’t raise $13.6 million for just any sponsor and any deal, of course. Tom LaSalle, Jack Brandt, and their team at Tapestry have a remarkable track record in the senior housing space, and this was their third deal on CrowdStreet. CrowdStreet itself has a terrific and well-deserved reputation as a premier site. Put a great deal, a great sponsor, and a great site together and you get a terrific result.
But let’s not forget the most important factor of all (besides the lawyer, I mean). In the Moon Township deal, Tapestry and CrowdStreet gave about 280 accredited investors from all over the United States the opportunity to participate in the kind of investment once reserved for the wealthy. That is now, and will continue to be, the most important ingredient for success. When we talk about Crowdfunding as the democratization of capital, that’s what we mean.
Tapestry raised $13.6 million from 280 investors. There are close to 10 million accredited investors in the United States alone. To my mind, that means that the opportunity for growth, even within Rule 506(c), is practically unlimited.
So hats off to Tapestry and CrowdStreet, and on to the next deal.
In this episode of The Real Estate Investing for Cash Flow Podcast, Kevin shares the mic with Mark Roderick — Corporate Securities Lawyer with a special focus in Fintech and Crowdfunding. Since the JOBS act of 2012, Mark has spent the majority of his time advising and representing the interests of upstart firms and companies on their fundraising activities. In addition, the contributions to his personal blog give detailed insight into the best fundraising strategies of the digital era.
HIGHLIGHTS [10:52] What was the ultimate catalyst for the JOBS act of 2012? [16:28] What is Mark’s “3 Flavors” of Crowdfunding? [25:44] What are the costs associated with setting up a Regulation A Public Offering? [33:42] What role has investor portals played in the last few years? [41:23] Mark’s closing thoughts.
The word is out about Qualified Opportunity Zones (QOZ) and just about every real estate professional in the country is interested about how this IRS sanctioned program works. Investing in a QOZ Fund provides all Americans with a way to save money on their taxes and provides real estate developers with a great angle to raise money for their projects. But are these investment vehicles securities? Can non-accredited investors participate in this form of crowdfunding? How can issuers create their own fund? Listen to attorney Mark Roderick from Flaster Greenberg PC address these questions, what the intricacies of QOZ investing are, and many other items of interest on this episode of the Mapable USA crowdfunding podcast.
While most funds center around real estate projects, any form of substantial improvement into a Qualified Opportunity Zone will satisfy the requirement of a QOZ fund – and that includes bringing in businesses and employment opportunities into these distressed communities. As such, the QOZ Marketplace is a website in progress connecting and identifying Qualified Opportunity Zone tracks and census data, along with a list of Opportunity Zone Funds and real estate properties for those interested in QOZ investing. Because of their tax deferral benefits, getting people seeking to defer their capital gains taxes to invest in these funds probably won’t be an issue. But Mr. Roderick brings up a great point: because QOZ Funds are self-certified, it’s important to be on the outlook for fraud. His advice? Look for a deal with a strong foundation with reputable people – the tax deferral savings is just icing on the cake!
If you’re a real estate developer accustomed to raising capital through traditional channels, you’re probably wondering about Crowdfunding. In this post, I’m going to provide some basic information, then try to answer the questions I hear most.
Basics of Crowdfunding
It’s Not Kickstarter. On Kickstarter, people make gifts, often to strangers. You’re not going to ask for gifts. Instead, you’re looking for investors, and in exchange for their money you’re going to give them the same kinds of legal instruments you’d give an investor in the offline world: an interest in an LLC, a convertible note, or something else.
It’s Just the Internet. For better or worse, a certain mystique has developed around Crowdfunding, if only because it’s so new. But Crowdfunding is just the Internet, finally come to the capital formation industry. We buy airline tickets online, we call a cab online, we search for significant others online, now we can search for capital online. If you’re comfortable buying socks on Amazon, you’ll be comfortable raising money using Crowdfunding.
Why Crowdfunding? How many investors do you know? Twelve? Seventy-two? With Crowdfunding, you can put your project in front of every investor in the world. And you’ll probably get better terms.
The Market Is Small But Growing Quickly. Title II Crowdfunding became legal in September 2013, Title IV in June 2015, and Title III in May 2016. The amounts being raised are in the billions of dollars per year, small in terms of the overall U.S. capital markets but growing quickly.
There Are Three Flavors of Crowdfunding. Crowdfunding was created by the JOBS Act of 2012. The three flavors of Crowdfunding are named for three of the sections, or “Titles,” of the JOBS Act:
Title II, which allows only accredited investors (in general, those with $200,000 of income or $1 million of net worth, not counting a principal residence) but is otherwise largely unregulated.
Title III, which allows issuers to raise up to $1 million per year, through a highly-regulated online process.
Title IV, which allows issuers to raise up to $50 million per year in what amounts to a mini-public offering.
For more information, take a look at this chart. But first, read the next bullet point.
You Don’t Have to Learn the Legal Rules. You’re a real estate developer, not a lawyer. You don’t have to become a lawyer to raise money using Crowdfunding, and in terms of lifestyle I wouldn’t recommend it.
You Don’t Have to Write Computer Code. You’re a real estate developer, not an IT professional. You don’t have to know or learn anything about technology to raise money through Crowdfunding.
Crowdfunding is About Marketing. It’s not a technology business, it’s not even a real estate business. Crowdfunding is all about marketing. You create a product that investors will want, and you market both the product and your track record. Just as you rely on your lawyer for legal advice and your IT folks for technology, you rely on marketing professionals to sell yourself and the product.
Will I Have More Liability? Here’s a long and technical blog post, listing all the ways that an issuer of securities in Crowdfunding can be liable. By all means share this with your regular lawyer and ask for his or her opinion. But the bottom line is that if you do it right, raising money through Crowdfunding creates no more liability than raising money through traditional channels. It’s just the Internet.
Will Banks Lend Money for Crowdfunded Deals? In the earliest stages of Crowdfunding, some lenders balked at deals that involved a bunch of passive investors. But we crossed that bridge long ago. Today, banks and other institutional lenders routinely finance Crowdfunding deals.
Isn’t It a Hassle Dealing with All Those Investors? It can be, but doesn’t have to be. For one thing, investors in the Crowdfunding world get no voting or management rights. If you’re used to the private equity guys looking over your shoulder, you’ll be thrilled with Crowdfunding. For another thing, if you use one of the existing Crowdfunding portals (see below), you can outsource a large part of the initial investor relations.
I’ve Heard That Investors Must Be Verified – How Does That Work? In Title II Crowdfunding, the issuer – you – must verify that every investor is accredited. In theoretical terms that could mean asking for tax returns, brokerage statements, and other confidential information. But in practical terms it just means engaging a third party like VerifyInvestor. Most verification is done with a simple letter from the investor’s lawyer or accountant.
How Much Money Can I Raise? In a typical Title II offering, developers typically raise $1M to $3M of equity.
If Crowdfunding is Still Small, Why Start Now? One, you can raise capital for smaller deals. Two, it’s about building a brand in the online market. In a few years, when developers are raising $30M rather than $3M, the developer who built his brand early is more likely to be funded.
Is Crowdfunding All or Nothing? No, not at all. You can raise part of the capital stack through Crowdfunding and the balance through traditional channels.
Will I Need a PPM? You’ll generally provide the same information to prospective investors in the online world as you’re accustomed to providing in the offline world.
Why Am I Seeing All These REITs in Crowdfunding? Three reasons:
Most retail investors have neither the skill nor the desire to select individual real estate projects. Just as retail investors prefer mutual funds to picking individual stocks, retail investors will prefer to invest in pools of assets that have been chosen by a professional.
Theoretically, thousands of retail investors could invest in a traditional limited liability company. But when you own equity in an LLC you receive a K-1 each year. For someone who’s invested $1,000, the cost of adding a K-1 to her tax return at H&R Block could be prohibitive. In a REIT you receive a 1099, not a K-1.
Privately-traded REITs have a very bad reputation, plagued by high fees and sales commissions. But if light is the best disinfectant, the Internet is like a spotlight, relentlessly driving down costs and providing investors with instantly-accessible information.
What Kind of Yields Do Investors Expect? That’s a tough question, obviously. But here are two data points. For an equity investment in a high-quality, cash-flowing garden apartment complex, investors might expect a 7% preferred return and 70% on the back end (e., a 30% promote for you). For a debt investment in a single-family fix-and-flip, with a 65% LTV, they might expect a 9% interest rate on a one-year investment.
Should I Use Rule 506(b) or Rule 506(c)? If you’re asking that question, you probably shouldn’t be reading this blog post. Try this one.
Do I Need a Broker-Dealer? Two answers:
As a general rule, you are not legally required to be registered as a broker-dealer, or to be affiliated with a broker-dealer, if you’re offering your own deals. For a more technical legal answer, you can read this blog post.
To sell your deal, you might want to use a broker-dealer, or a broker-dealer network.
How Can I Get Started? You have two choices:
You can establish your own website and list your own deals. But there are millions of websites in the world, many featuring photographs of naked people. Against that competition you might find it difficult to attract eyeballs.
You can get your feet wet by listing projects on an existing real estate Crowdfunding portal, one with a good reputation and a large pool of registered investors. If that goes well, you can think about establishing your own website later. The portal will take the mystery out of the online process, making it look and feel like any other offering from your perspective.
Targeted internal rate of return, or IRR, is used widely to advertise deals on Crowdfunding sites, real estate and otherwise. While target IRR means something to sophisticated sponsors and investors, its widespread and uncritical use makes me a little uneasy, for the following reasons:
If pressed, many people don’t know what IRR really means. Investors assume that a higher IRR is better than a lower IRR, but many couldn’t explain exactly why or how.
IRR can be misleading. For example, a bond purchased for $100 that pays interest of $10 at the end of each of the first four years and $110 at the end of the fifth year has an IRR of 10%. A bond purchased for $68.30 that pays nothing for four years and $110 at the end of the fifth year also has an IRR of 10%. But those two investments are very different. The IRR calculation assumes that the $10 interest payments on the first bond can be reinvested at 10%, which is probably not true.
The IRR of a real estate deal (or any deal) increases when the asset is refinanced and the proceeds distributed to investors. But refinancing the asset doesn’t necessarily make for a better investment.
There being no such thing as a free lunch in capitalism, a higher IRR generally coincides with higher risk. For example, I can usually increase my IRR by borrowing more money. That relationship is not typically highlighted.
For a typical startup outside the real estate industry, IRR has no meaning. Or to put it differently, a 28% target IRR for a startup plus $2.75 gets you on the New York subway.
The term “target IRR” tends to mask what’s really important: the factual assumptions concerning sales and asset appreciation. To say “We expect a target IRR of 18%” is somehow easier to sell than “We expect the property to appreciate at 6% per year.”
Under FINRA Rule 2210, offerings conducted through a broker-dealer may not advertise target IRRs. FINRA also prohibits Title III Funding Portals from advertising target IRRs, and the SEC prohibits new issuers from advertising a target IRR in Regulation A offerings, even for sponsors with extensive track records. Hence, target IRR cannot be used to compare offerings across all platforms and all deal types.
What can we do better as an industry? Here are a few ideas:
We can explain internal rate of return better, maybe with examples and a standardized presentation and graphics.
We can develop other apples-to-apples metrics for comparing deals.
We can make clear that higher IRRs generally come with higher risks.
In Regulation A offerings, and even in Rule 506(b) offerings where non-accredited investors are involved, the issuer is required to provide extensive information about the sponsor’s track record. Some version of that concept, applied consistently and allowing for side-by-side comparison, might be the most valuable information for investors.
Crowdfunding is a marketing business. But when it comes to marketing an offering of securities by a Title III issuer, things get complicated. That’s why this is three times longer than any blog post should be.
Why It Matters
Section 5(c) of the Securities Act provides that an issuer may not make an “offer” of securities unless a full-blown registration statement is in effect, of the kind you would prepare for a public offering.
There are lots of exceptions to the general rule and Title III is one of them: you can make “offers” of securities without having a full-blown registration in effect, if you comply with the requirements of Title III.
On one hand that’s good, because if you market your offering as allowed by Title III, you’re in the clear. On the other hand, if you make “offer” of securities without meaning to, or without complying with the intricacies of Title III, you could be in trouble in two ways:
You might have violated section 5(c), putting yourself in jeopardy of enforcement action by the SEC and other liability.
By making an illegal offer, you might have jeopardized your ability to use Title III at all.
What is an “Offer” of Securities?
Section 2(a)(3) of the Securities Act defines “offer” very broadly, to include “every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value.” And the SEC has defined “offer” even more broadly than those words suggest. Going back to 1957, the SEC said that any publicity that could “contribute to conditioning the public mind or arousing public interest” could be treated as an “offer.”
These examples illustrate the spectrum:
A company continues to advertise its services as usual, keeping its plans for an offering under wraps, then files an S-1 registration statement.
A company steps up its public relations efforts before a new product announcement, which happens to coincide with a new public offering.
For six months before it files a registration statement, a company triples its advertising budget, trying to build brand recognition specifically with the investing public.
A company puts up a website announcing “Please buy our common stock!”
The SEC has adopted a number of rules describing behavior that will not be treated as an “offer” for purposes of section 5(c). For example, Rule 135 allows so-called “tombstone” advertisements of registered offerings, Rule 135c allows notices of private offerings by publicly-reporting companies, and Rule 169 allows factual business information released by an issuer that has filed or intends to file a registration statement. But all these rules apply only to companies that are or intend to become public or publicly-reporting. There are no equivalent rules dealing with the behavior of small companies.
A Different Definition for Small Companies?
With that background, advice given by the SEC in 2015 catches your attention:
Question: Does a demo day or venture fair necessarily constitute a general solicitation for purposes of Rule 502(c)?
SEC Answer: No. Whether a demo day or venture fair constitutes a general solicitation for purposes of Rule 502(c) is a facts and circumstances determination. Of course, if a presentation by the issuer does not involve an offer of a security, then the requirements of the Securities Act are not implicated.
The italicized statement is true, by definition. If there is no “offer,” the securities laws don’t apply. Even so, it’s hard to reconcile with the SEC guidance for public companies. A “demo day” is, by any definition, an event where companies make presentations to investors. Not to customers, to investors. If merely “conditioning the public mind” can be an offer, it is very hard to understand how presenting to a roomful of investors could not be an offer.
Trying to reconcile the two, you might conclude that the SEC is, in effect, using different definitions of “offer” depending on the circumstances. During the period surrounding a public offering of securities a stringent definition applies (the 1957 ruling involved the period immediately following the filing of a registration statement) while outside that period a more lenient definition applies. If that were true, those of us trying to advise Title III issuers would sleep better.
There are two glitches with the theory, however:
Maybe the SEC will view the period surrounding a Title III listing in the same way it views the period surrounding a public registration statement.
The preamble to the final Title III regulations actually cites Rule 169 and cautions that “The Commission has interpreted the term ‘offer” broadly. . . .and has explained that ‘the publication of information and publicity efforts, made in advance of a proposed financing which have the effect of conditioning the public mind or arousing public interest in the issuer or in its securities constitutes an offer. . . .’” That sure doesn’t sound like a more lenient rule for Title III.
The Title III Rule for Advertising
Title III is about Crowdfunding, right? Doesn’t that mean Title III issuers are allowed to advertise anywhere and say anything, just like Title II issuers?
A core principle of Title III is that everything happens on the portal, where everyone can see it, so nobody has better access to information than anyone else. A corollary is that that Title III issuers aren’t allowed to advertise freely. If a Title III issuer put information about its offering in the New York Times, for example, maybe readers of the New York Post (are there any?) wouldn’t see it.
A Title III issuer can advertise any where it wants – Twitter, newspapers, radio, web, etc. – but it can’t say any thing it wants. All it can do is provide a link to the Funding Portal with an ad that’s limited to:
A statement that the issuer is conducting an offering
The terms of the offering
Brief factual information about the issuer, e.g., name, address, and URL
In the public company world, those are referred to as “tombstone” ads and look just about that appealing. In the online world issuers can do much better. A colorful post on the issuer’s Twitter or Facebook pages saying “We’re raising money! Come join us at www.FundingPortal.com!” is just fine.
Insignificant Deviations From The Rules
Recognizing that Title III is very complicated and new, section 502 of the Title III regulations provides:
A failure to comply with a term, condition, or requirement. . . .will not result in the loss of the exemption. . . .if the issuer shows. . . .the failure to comply was insignificant with respect to the offering as a whole and the issuer made a good faith and reasonable attempt to comply. . . .”
The language is vague, as it has to be, but it certainly suggests that Title III issuers can make mistakes without losing the exemption. And there’s no reason why mistakes in advertising an offering should be treated more harshly than other mistakes.
The purpose of the advertising rule, as we’ve seen, is to ensure that every investor has access to the same information. If a Title III issuer mistakenly provides more information about its offering in a Facebook post than it should have, the infraction could be cured easily – for example, by ensuring that any information in the Facebook post appeared on the Funding Portal for at least 21 days before the offering goes live, or by correcting the Facebook post and directing Facebook friends to the Funding Portal.
Where Does That Leave Us?
Ideally, a company thinking about raising money using Title III would follow these simple rules:
Don’t attend demo days.
In fact, don’t mention your plan to raise money to any potential investors until you register with a Title III Funding Portal.
The minute you want to talk about raising money, register with a Title III Funding Portal.
After registering with a Title III Funding Portal, don’t mention your offering except in “tombstone” advertising.
After registering with a Title III Funding Portal, don’t meet, speak, or even exchange emails with investors, except through the chat room on the Funding Portal.
A company that follows those rules shouldn’t have problems.
That’s ideal, but what about a company that didn’t speak to a lawyer before attending a demo day? What about a company that posted about its offering on Facebook before registering with a Funding Portal, and included too much information? What about a company that’s spoken with some potential investors already? What about a real company?
Nobody knows for sure, but unless the SEC takes a very different position with regard to Title III than it has taken with regard to Regulation D, I think a company that has engaged in any of those activities, or even all of those activities, can still qualify for a successful Title III offering.
Let’s not forget, the SEC has been very accommodating toward Crowdfunding, from the no-action letters in March 2013 to taking on state securities regulators in Regulation A. With section 502 in its toolbox, it’s hard to believe that the SEC is going to smother Title III in its cradle by imposing on startups the same rules it imposes on public companies.
It’s instructive to look at the way the SEC has treated the concept of “general solicitation and advertising” under Regulation D.
By the letter of the law, any contact with potential investors with whom the issuer does not have a “pre-existing, substantive relationship” is treated “general solicitation,” disqualifying the issuer from an offering under Rule 506(b) (and all of Rule 506, before the JOBS Act). But the SEC has taken a much more pragmatic approach based on what it refers to as “long-standing practice” in the startup industry. In fact, in a 1995 no-action letter the SEC concluded that there had been no “general solicitation” for a demo day event even when investors had been invited through newspaper advertisements.
I think the SEC will recognize “long-standing practice” in interpreting Title III also.
Bearing in mind the language of section 502, I think the key will be that an issuer tried to comply with the rules once it knew about them, i.e., that a company didn’t violate the rules flagrantly or intentionally. If you’re a small company reading this post and start following the rules carefully today, I think you’ll end up with a viable offering. Yes, there might be some legal doubt, at least until the SEC issues clarifications, but entrepreneurs live with all kinds of doubt, legal and otherwise, all the time.
It’s Not Just the Issuer
The issuer isn’t the only party with a stake in the advertising rules. The Funding Portal might have even more on the line.
Here’s the challenge:
Before allowing an issuer on its platform, a Funding Portal is required to have a ”reasonable basis” for believing that the issuer has complied with all the requirements of Title III.
We’ve seen that one of the requirements of Title III is that all advertising must point back to the Funding Portal.
Before the issuer registered with a Funding Portal, advertising by the issuer couldn’t have pointed back to the Funding Portal.
Therefore, if a would-be issuer has engaged in advertising before registering with the Funding Portal, including any activity that could be construed as an “offer” for purposes of section 5(c), the Funding Portal might be required legally to turn the issuer away.
With their legal obligations in mind, dozens of Funding Portals are preparing questionnaires for would-be issuers as I write this, asking questions like “Have you made any offers of securities during the last 90 days? Have you participated in demo days?”
If the Funding Portal denies access to any issuer that answers “I don’t know” or “Yes,” it might end up with very few issuers on its platform. On the other hand, if it doesn’t ask the questions, or ignores the answers, it’s probably not satisfying its legal obligation, risking its SEC license as well as lawsuits from investors.
The Funding Portal will have to make some tough calls. But its answer doesn’t have to be limited to “Yes” or “No.” For one thing, using its own judgment, the Funding Portal might suggest ways for the issuer to “fix” any previous indiscretions. For another, rather than make the call itself, the Funding Portal might ask for an opinion from the issuer’s lawyer to the effect that the issuer is eligible to raise money using Title III.
Advertising Products and Services
We’ve seen that product advertisements by a company that has filed, or is about to file, a public registration statement can be viewed as an “offer” of securities for purposes of section 5(c) if the company uses the product advertisement to “arouse interest” in the offering. However, I don’t believe this will be a concern with Title III:
A company that has registered with a Funding Portal should be free to advertise its products and services however it pleases. There’s no “quiet period” or similar concept with Title III the way there is with a public registration.
A company that has not yet registered with a Funding Portal and is not otherwise offering its securities should also be free to advertise its products or services. Just not at a demo day!
Many companies in the Title III world will be looking to their customers as potential investors. For those companies it makes perfect sense to advertise an offering of securities in conjunction with an advertisement of products or services. Sign up with a Funding Portal, follow the rules for advertising, and “joint” advertisements of product and offering should be fine.
Will a Legend Do the Trick?
Suppose a company thinking about raising money using Title III Crowdfunding makes a presentation to a roomful of investors at a demo day, but includes on each slide of its deck the disclaimer: “This is Not An Offering Of Securities.”
The disclaimer doesn’t hurt and might tip the balance in a close case, but don’t rely on it.
An Issuer With A Past: Using Rule 506(c) to Clean Up
In Scott Fitzgerald’s TheGreat Gatsby, the main character reaches for a new future but, in the end, finds himself rowing “against the current, borne back ceaselessly into the past.” In this final section I’ll suggest a way that an issuer might raise money using Title III notwithstanding a troubled past, succeeding where Jay Gatsby could not.
Suppose an issuer registers with a Funding Portal, raises money using Title III, then fails. Looking for a basis to sue, investors learn that the issuer attended a demo day three weeks before registering with the Funding Portal. An illegal offer! Gotcha!
“No,” says the issuer, calmly. “You’re right that we attended a demo day and made an offer of securities, but that’s when we were thinking about a Rule 506(c) offering. As you know, offers made under Rule 506(c) are perfectly legal. It was only afterward that we started to think about Title III.”
As long as the record – emails, promotional materials, investor decks, and so forth – demonstrates that any “offers” were made in contemplation of Regulation D rather than Title III, I think the issuer wins that case. The case would be even stronger if the issuer actually sold securities using Rule 506(c) and filed a Form D to that effect, before registering with the Funding Portal.
An issuer with a troubled past – one that has attended lots of demo days, posted lots of information on Facebook and met with a bunch of different investors – might go so far as to engage in and complete a Rule 506(c) offering before registering on a Funding Portal. With the copy of the Form D in their files, the issuer and the Funding Portal might feel more comfortable that the troubled past is behind.