legal technology trends

Artificial Intelligence and the Law: Update

Three and a half years ago, when ChatGPT v1 was released, many predicted that lawyers would be the first on the chopping block. The time is coming now, just not in the way most people expected.

Most people expected that capable lawyers would be replaced by capable AI. That’s not what’s happening.

As I’ve written previously, the AI tools created by large legal publishers like Westlaw and Lexis-Nexis are disappointing. The LLMs themselves, Claude and ChatGPT, are much better, but even they are less capable, in most instances, than a first-year lawyer. LLMs still hallucinate and will always hallucinate – they invent cases or statutes that don’t exist and pretend a statute says one thing when it says the opposite. High-profile law firms have been sanctioned recently for depending on AI.

And yet, with OpenAI, Anthropic, and SpaceX moving toward IPOs, the hype from the AI industry is a locomotive that can’t be stopped. 

Many non-lawyers believe that AI has already reshaped the legal industry. Online, non-lawyers wonder cynically why lawyers are still expensive, given that AI is doing all the work.  The General Counsel of a large company demanded that firms cut their rates to reflect AI efficiencies. That AI can draft legal documents as well as it writes code is taken as a given – if it hasn’t happened today, it will happen tomorrow. Caught in the frenzy, Kirkland and Ellis just announced plans to spend $500 million on AI, even though it will be obsolete long before it’s finished. 

The apotheosis is the “AI-native law firm”, and the apotheosis of that is a firm created recently by a lawyer who used to work for OpenAI. He raised millions of dollars from big-name VCs. The firm uses AI, presumably trained on typical forms, to create drafts of contracts. Then the drafts are sent – I’m not making this up – to 50+ outside flesh-and-blood lawyers to review. 

Is that an “AI-native law firm” or a normal 50-lawyer law firm of uncertain quality?

We could call it a “computer-native law firm” instead, with as much meaning. And back in the day, law firms were “typewriter-and-books-native law firms”.

Yet the locomotive moves on. Practicing lawyers know the shortcomings of AI, but many of their clients don’t. Consequently, lawyers are losing work to AI, as predicted three years ago, but the work produced by the AI is vastly inferior. It’s no exaggeration to say that lawyers are losing work not to the technology but to the hype.

In the short term, many businesses will use legal documents and make legal decisions that are flawed. But flaws in legal documents and legal decisions often remain hidden for a long time. Maybe, with the passage of time, the AI-for-law tools will live up to the hype. Maybe, after the IPOs, the hype will subside and the market will adjust. Meanwhile, it’s going to be difficult for a lot of law firms and a lot of law school graduates, squeezed between the hype and the reality of AI. 

To take my mind off it, I’m traveling to an AI-native pond to catch AI-native fish.

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

Investor relations professionals discussing private securities offerings and compliance obligations

The Profits And Perils of Investor Relations Departments

For many syndicators, adding an investor relations employee or group is a logical next step, freeing the principals from routine investor communications and putting critical investor relationships in the hands of professionals.

As with so many things, however, there is a flip side. A group of investor relations specialists can do tremendous good for your business. Unsupervised, they can also do a lot of damage.

Three Ways to Go Wrong

There are three ways investor relations specialists can go wrong.

Way #1:  They Say Things That Aren’t True

In their eagerness to perform, investor relations specialists sometimes say things that aren’t true, or make promises that can’t be kept. That kind of “loose cannon” approach invites lawsuits from unhappy investors. 

Way #2:  They Act as Unlicensed Broker-Dealers

Section 15 of the Securities Exchange Act of 1934 requires every broker-dealer to be registered with the SEC. A “broker-dealer” is “any person engaged in the business of effecting transactions in securities for the account of others.” A guy in your investor relations group who sells interests in your deals – your biggest, most valuable seller especially – can easily fall within that definition. 

Way #3:  They Act as Unlicensed Investment Advisers

Section 203(a) of the Investment Advisers Act of 1940 requires every investment adviser to register with the SEC. An “investment adviser” is “any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities. . . .”

In her eagerness to perform, your investor relations specialist, speaking of your most recent offering, says, “George, I really think this makes sense based on your goals and portfolio.” She’s crossed the line.

You Are Liable

Whether your investor relations employee says things that aren’t true or acts as an unlicensed broker-dealer or investment adviser, you are probably going to be personally liable. That means both financial liability and the possibility of being labeled a “bad actor” ineligible to participate in the capital markets, i.e., to raise money.

What to Do About It

In a later post, I’ll discuss the exceptions, the exceptions to the exception, and what you can do about it. Stay tuned.

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

Crowdfunding for Real Estate Podcast: What’s Actually Working Today?

Crowdfunding Real Estate Under the JOBS Act

Crowdfunding has long been pitched as a game-changer for raising private capital—opening the door for everyday investors to participate in opportunities once reserved for institutions. But how much of that promise has actually held up?

In a recent episode, crowdfunding attorney Mark Roderick cuts through the noise to explain how the JOBS Act has really reshaped the landscape—and what real estate sponsors need to know before choosing a path.

The Three Paths to Crowdfunding

Not all crowdfunding is created equal. Mark breaks down the three primary frameworks:

  • Regulation Crowdfunding (Reg CF) – Designed to allow non-accredited (“mom and pop”) investors to participate in deals.
  • Rule 506(c) – Allows sponsors to publicly market offerings, but limits investors to accredited individuals.
  • Regulation A (Reg A) – A more complex, mini-public offering that can reach a broader audience but comes with heavier compliance requirements.

While each option has its place, their real-world performance has been far from equal.

Accredited vs. Non-Accredited Investors: Why It Matters

One of the biggest distinctions in crowdfunding comes down to who you’re raising money from.

  • Accredited investors (high-net-worth individuals) bring larger check sizes and fewer regulatory hurdles.
  • Non-accredited investors expand your audience—but significantly increase compliance, cost, and complexity.

This trade-off is at the heart of why certain crowdfunding models have struggled to scale.

Why 506(c) Is Winning

According to Mark, Rule 506(c) has emerged as the clear leader—especially in real estate.

Why?

  • Ability to advertise and market deals publicly
  • Access to larger pools of capital from accredited investors
  • More efficient fundraising with fewer administrative burdens

For many sponsors, it strikes the right balance between flexibility and scalability—making it the current “gold standard.”

The Reality Check on Reg CF

Reg CF was initially celebrated as a way to democratize investing—but in practice, it hasn’t fully delivered.

Challenges include:

  • Smaller individual investment amounts
  • Higher operational and compliance costs
  • Platform dependency and investor management complexity

The result? Many deals struggle to raise meaningful capital at scale, making Reg CF less practical for larger real estate projects.

Does Your Deal Justify Crowdfunding?

Before jumping in, sponsors need to ask a critical question: Is the deal big enough to support the cost and effort?

Crowdfunding isn’t free. Legal, compliance, and marketing expenses can quickly add up—especially for Reg CF and Reg A offerings.

For smaller deals, traditional private capital or relationship-based fundraising may still be the smarter path.


Final Takeaway

Crowdfunding can be a powerful tool—but only when used strategically.

Today, the market is showing a clear trend:

  • 506(c) dominates for efficiency and scalability
  • Reg CF remains limited despite its original promise
  • Reg A works—but only for the right size and structure

For real estate sponsors, success isn’t about choosing the most accessible option—it’s about choosing the one that actually works.

For a deeper dive into Reg CF, 506(c), and Reg A—and what’s truly working in today’s market—listen to the full episode featuring Mark Roderick.

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

Can I Use Rule 506(c) To Build Pre-Existing Relationships?

Suppose you raise money using Rule 506(c) offering. In your next offering you want to include a handful of non-accredited investors. Your AI assistant tells you to use Rule 506(b) for the new offering and that you must have a “romantic relationship” with every investor. Do you have “romantic relationships” with the investors from your Rule 506(c) offering?

Whoops! That’s what you get from using ChatGPT. It’s a “pre-existing relationship,” not a “romantic relationship.” 

Can you claim to have “pre-existing relationships” with investors you found online?

A Quick Refresher

Rule 506(b) and Rule 506(c) are both exemptions under SEC Regulation D, but they’re very different. Rule 506(c) lets you advertise — websites, social media, email blasts, whatever you want — but every investor must be accredited, and you have to verify that, most of the time. Rule 506(b) is the old-fashioned version: you can take up to 35 non-accredited investors and you don’t have to verify that anyone’s accredited, apart from asking them. And most important, you can’t advertise. You can include only investors with whom you have a pre-existing substantive relationship. 

Here’s a more in-depth description of the similarities and differences.

The question is whether you can use a 506(c) offering to find investors, then include them in a subsequent offering under Rule 506(b), sort of a two-step.

SEC Guidance

The SEC has answered this question in a Compliance and Disclosure Interpretation, sort of. In C&DI 148.01, the SEC confirms that it’s possible to convert Rule 506(c) investors into Rule 506(b) investors, which is good.  It just doesn’t tell you how to convert them. 

For a blueprint how to convert them, we turn to a no-action letter the SEC issued to an online venture capital platform called Citizen VC. For reasons that aren’t clear, Citizen VC wanted to conduct offerings under Rule 506(b), not Rule 506(c), but they wanted to do it by soliciting prospective investors online. As a first step, they had investors complete an online questionnaire. After the questionnaire, they went through a “relationship establishment period” that involved several steps. Among the most important, they spoke with the investor personally. They also accumulated information from the investors and third-party sources regarding the investor’s sophistication, financial circumstances, and ability to understand the nature and risks related to an investment. When they were able to reach a reasonable conclusion that the investment and the investor were suitable for one another, poof!, the preexisting relationship came into being.

If only romantic relationships were so easy!

Caveats

One, the Citizen VC investor was shown investments only after the process was completed. That’s very different than the typical Rule 506(c) kind of solicitation.

Two, C&DI 148.01 and Citizen VC do not mean that soliciting investors for Rule 506(c) offerings has anything to do with creating a pre-existing relationship. It doesn’t. If you have a pool of Rule 506(c) investors, you are starting from scratch.

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

SEC Regulation Crowdfunding guidance explaining new compliance interpretations for Reg CF offerings, investor limits, and financial statement requirements.

SEC Issues New Reg CF Guidance: Key Compliance Updates for Crowdfunding Issuers & Funding Portals

In February, the SEC published five new Compliance and Disclosure Interpretations — C&DIs — about Reg CF. The SEC issues C&DIs to tell the public its views without issuing formal regulations. Unlike what you might be told in a telephone conversation with the SEC staff, you can rely on a C&D.

Moving Your Offering to a Different Platform

A Reg CF offering may be conducted on only one platform. If you start on one platform, can you switch to another?

Yes, according to the new guidance, but only if you haven’t made any sales. You must cancel the offering on the original platform, have the offering materials removed from that platform, and file a new Form C to start fresh on the new platform.

Former Exchange Act Reporting Companies

Public companies – companies required to file reports under Section 13 or 15(d) of the Exchange Act — may not use Reg CF. But the new guidance clarifies that the disqualification ends for a company whose reporting obligations are terminated.  

The Rolling 12-Month Cap

Rule 100(a)(1) limits how much an issuer can raise through Reg CF to $5 million in any 12-month period. The question is: when does the 12-month period start?

The new guidance says the cap uses a rolling 12-month calculation measured from the date of each closing. If you closed your first tranche on June 15, 2025, the one-year anniversary of that closing is June 15, 2026. On that date, the amount raised in that closing – but just that closing – drops out of the calculation.

“Annual Income” for Investor Limits

Rule 100(a)(2) limits how much a non-accredited investor can invest in Reg CF offerings over a 12-month period, based on the investor’s “annual” income and net worth. The new guidance clarifies that “annual” means the calendar year. 

Stale Financial Statements in Ongoing Offerings

Suppose you start a Reg CF Offering on March 3, 2026 using financial statements from 12/31/2024 and 12/31/2023. If the offering is still open on 04/30/2026, then you must file your financial statements for 12/31/2025 before proceeding. In other words, you can’t keep an old set of financials in your Form C indefinitely just because the offering is still technically open. 

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

Illustration representing the structure of Regulation Crowdfunding and the difference between using a custodian and a crowdfunding vehicle

Don’t Use Custodians In Crowdfunding

Visual representation of Reg CF structure and custodian risk

There is no compelling reason to use a custodian in Reg CF and a very good reason not to. But some funding portals, like StartEngine, keep doing it. Why?

On its website, StartEngine explains that custodians are used for:

  • Safekeeping of Assets:  Custodians are responsible for holding and protecting securities and other assets. 
  • Settlement of Transactions:  Custodians facilitate the settlement of securities transactions, ensuring that trades are executed correctly and that the ownership of securities is accurately transferred.
  • Income Collection:  Custodians collect income generated by the securities, such as interest and dividends, and ensure that these funds are credited to the correct accounts.
  • Corporate Actions:  Custodians manage corporate actions, ensuring that all changes are accurately recorded and reflected in the investor’s accounts.
  • Reporting and Compliance:  Custodians provide detailed reports on the assets they hold and manage, ensuring transparency and compliance with regulatory requirements. They play a vital role in providing accurate and timely information to both issuers and investors.

For a publicly traded company, those things are true. But for a Reg CF offering, none of them matters very much.

In any case, they can all be handled more effectively by using a crowdfunding vehicle. NewCo, Inc. is raising money using Reg CF. NewCo forms and serves as the manager of NewCo CF LLC. NewCo CF LLC is one entry on the cap table of NewCo, Inc. Investors buy stock in NewCo CF LLC rather than in NewCo, Inc.

Everything – distributions, reporting, etc. – works the same as if investors owned stock in NewCo, Inc. directly, with no custodian needed.

The crowdfunding vehicle is also a more effective solution for the thing that really does matter, protecting the issuer from section 12(g) of the Exchange Act.

As discussed here, section 12(g) provides that if a company has more than $10 million of assets and at least 500 non-accredited shareholders (or 2,000 total), it must file all the reports required of a public company. When a crowdfunding vehicle is used – NewCo CF LLC in the example above – only entity investors, not individuals, are counted toward those limits. Hence, a crowdfunding vehicle all but eliminates the risk of section 12(g).

A custodian might avoid section 12(g) as well, but not necessarily. On one hand, SEC Rule 12g5-1(a)(3) (17 CFR §240.12g5-1(a)(3)) provides that, in general, where stock owned by many investors is held by a custodian, only the custodian will be treated as a shareholder for purposes of the 500 and 2,000 shareholder limits.

On the other hand, Rule 12g5-1(b)(3) provides that where the issuer knows or has reason to know that the custodian was used “primarily” to avoid section 12(g), then the custodian is ignored.

In the world of public companies, nobody thinks custodians are used primarily to avoid section 12(g), inasmuch as public companies are already filing like public companies. But in the world of Reg CF, section 12(g) was a central challenge from the beginning. In fact, the SEC created crowdfunding vehicles to help the Reg CF industry avoid section 12(g). Given that background, there is no chance, in my opinion, that StartEngine chose to use custodians without thinking about section 12(g). That they listed the benefits of custodians without mentioning section 12(g) suggests they were also thinking about Rule 12g5-1(b)(3).

Without seeing the internal discussions and emails, nobody can know whether StartEngine is using custodians primarily to avoid section 12(g). At some point, however, a successful issuer that raised capital using Reg CF and a custodian is going to ask its lawyer, “Do we have to start reporting publicly?” And after listening to the lawyer hesitate and talk about Rule 12g5-1(b)(3), “Why didn’t we use a crowdfunding vehicle instead?”

That’s the question. Why use a custodian in Reg CF?

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

tandard SAFE agreement showing how discount and valuation cap terms can create unintended outcomes in early-stage startup financing

Some SAFEs Aren’t Safe

Why “standard” SAFE terms can produce unintended – and unfair- results.

Simple Agreements for Future Equity are used widely in the startup world, including the Crowdfunding world. My impression, however, is that almost nobody reads them, not companies, investors, or funding portals. That’s too bad, because while SAFEs are simple in theory, they can be extremely complicated and lead to unintended results. Today, I’ll describe what can happen with one variation still being used by some funding portals.

Background

We use SAFEs in the earliest stages of a company’s life, when it’s impossible to know what the company is worth. A founder creates what he believes is an incredible app and goes to the market to raise $700,000 in development costs. Looking into a rosy-colored future, he thinks his company is worth about $50 million already. His investors, aided by their snarky lawyers, think it might be worth $5 million, if everything goes right.

To bridge the unbridgeable gap, we don’t agree on a value. Instead, we issue a SAFE. The SAFE says, essentially, “We’ll wait until later to put a value on the company, when it’s farther along.” Everyone agrees that when the company raises more money in the future, in a round where the parties can agree on a price, then the early investors will get what same price as the new investors get.

Well, not exactly the same price. Because they took more risk by coming in sooner, the early investors get a better price, typically in one of two ways:

  • A Discount:  The earlier investors get a discount vis-à-vis the priced round. If the new investors buy shares for $10.00 each, maybe the earlier investors convert at $8.50 per share, a 15% discount.
  • A Valuation Cap:  No matter how much the new investors think the company is worth, the earlier investors convert at a price that assumes the value of the company is no higher than a “valuation cap” established in the beginning. Here, the early investors might have insisted on a $5 million valuation cap. If the new investors value the company at $10 million, the early investors pay half the price as the new investors. But if the new investors value the company at only $4 million, the earlier investors get that price instead.

I said that early investors typically get either a discount or a valuation cap. But sometimes they get both. In that case, when the new money comes in the SAFE holders get the lower of the price they would get from the discount or the price they would get from the valuation cap.

That’s the best kind of SAFE for investors. Unfortunately, the standard SAFE with both a discount and valuation cap can reach the wrong result.

The Standard SAFE Form Doesn’t Work as it Should

Suppose NewCo, Inc. issued a SAFE with both a discount (15%) and a valuation cap ($5 million), for $500,000. Other than the SAFE, NewCo has 1,000,000 shares outstanding. Now the company is preparing for a priced round of Series A Preferred, in which NewCo will raise $1 million. That triggers a conversion of the SAFE.

NewCo and the new investors agree that NewCo is worth $4 million immediately before the investment. That means that immediately following the investment, the new investors should own 20% of the stock ($1 million investment divided by $5 million post-money valuation). All that’s left is some simple arithmetic to decide how many shares they should receive for their 20% interest.

They should get that number of shares such that, if NewCo were sold for $5 million the next day, they would get exactly their $1 million back.

To calculate that number, we need to calculate how much all the other shareholders would get, including the SAFE holders.

Given the structure of the SAFE, where the holders get the better of X or Y, you might think the standard SAFE would say that upon a sale of NewCo, the SAFE holders receive the higher of the amount they would receive from the discount and the amount they would receive from the valuation cap. But it doesn’t. Instead, it says they will receive the higher of the amount they paid for the SAFE or the amount they would receive from the valuation cap. The discount is nowhere to be found.

In this case, because the valuation cap is higher than the new valuation, the SAFE holders would receive their $500,000 back, nothing more. The other stockholders, who own 1,000,000 shares, will get $3.5 million, or $3.50 per share. And the new investors, to get their $1 million back, should get 285,714 shares of the new preferred for $3.50 each.

Upon a conversion, the SAFE holders receive the better of the number of shares they would receive under the valuation cap and the number of shares they would receive under the discount. Because the $5 million valuation cap is higher than the new valuation, the SAFE holders will get the number of shares under the discount. The share price for the new investors is $3.50, so the conversion price for the SAFE holders, with a 15% discount, is $2.98. Having invested $500,000, they receive 168,067 shares.

The fully diluted cap table now shows:

OwnerSharesPercentage
Original Stockholders1,000,00069%
New Investors 285,71420%
SAFE Holders168,06712%
TOTAL1,453,781100%

Here’s how a $5 million selling price would be divided based on those percentages:

OwnerPercentageConsideration
Original Stockholders69%3,439,308
New Investors 20%982,658
SAFE Holders12%578,034
TOTAL100%$5,000,000

As you see, the new investors get less than they’re supposed to, the original stockholders get less than they’re supposed to, and the SAFE holders get the difference. And that’s not because the SAFE is ambiguous. It’s because that’s how the SAFE was written.

Although Y Combinator no longer uses that SAFE, many still do, including funding portals like WeFunder. 

What Do We Do Now?

If you’re the new investors, you don’t do the deal unless someone makes you whole.

If you’re the SAFE holder, you hold your ground or, if you really want the investment, you negotiate with the existing stockholders.

If you’re the existing stockholders, you try to talk reason to the SAFE holders. That’s not how it’s supposed to work!

If you’re the unlucky founder and own only a chunk of the 1,000,000 shares already outstanding, you’re squeezed. To make the new investors whole on your own, you’ll have to give up 5,042 more shares to the new investors, on top of the shares you’ve already transferred to the SAFE holders because of the structural flaw in the SAFE.

What Do We Do in the Future?

If you’re the company or funding portal, you correct the standard SAFE.

If you’re the new investor and see such a SAFE, you don’t spend a lot of time until the existing stockholders and the SAFE holders figure something out.

If you’re investing in a startup and are offered such a SAFE, you say, Sure! 

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

music industry operating agreement

Hall & Oats: Not Together Again (For Lack Of A Good Operating Agreement)

Does either of my readers remember Hall & Oates? They were among the most successful pop acts of all time, with hits like ‘She’s Gone,’ ‘Sara Smile,’ ‘Turnaround,’ and ‘Back Together Again.’

But they’re not together anymore. In fact, they recently emerged from painful and expensive litigation. Their saga is one more example of what happens for lack of a good Operating Agreement.

They signed a partnership agreement when they were young, successful, and close friends. As they drifted apart musically their interests were no longer as completely aligned. Disagreements crept into their friendship, disagreements that their partnership agreement hadn’t anticipated. John Oates tried to sell his stake in their business; Daryl Hall sued to stop him. The words they used were typical of this situation, words like “betrayal” and “outlandish.”

The litigation was settled but the friendship is finished and the wounds won’t heal. Both declare they will never work together again.

Their partnership agreement failed to address the most important question that any Operating Agreement should address: how we get away from another if things don’t work out, treating one another fairly and inflicting as little emotional and economic damage as possible?  

I’ve seen this play many times, just with different actors. One client didn’t want to spend a few thousand dollars on an Operating Agreement because his partners were close friends. By the time the litigation was finished, he had paid me in the seven figures and both the business and the friendship were destroyed.

A good Operating Agreement should address, among other things:

  • Who puts up how much money, when, and what happens if they don’t.
  • Who makes decisions.
  • How the partners can get away from one another.
  • Ownership percentage.
  • Compensation.
  • How the partners share profits.
  • Time commitment.
  • Whether partners can compete.
  • What happens on death, disability, retirement, etc.

You’ll notice that none of those things is industry specific. Operating Agreements are about people, and people are the same.

Those can be tough issues to discuss at the beginning of a business relationship, like a bride and groom negotiating a pre-nuptial agreement. The good news is that all of them can be dealt with.

Two tech guys come to me asking for documents:  a new corporation, a stock option plan, an inventions agreement, an offer letter, corporate resolutions, a contribution agreement, all the things to start a unicorn. What they never ask for is a good Operating Agreement. Because, you know, they’re friends. 

In every business, the Operating Agreement is the most important document of all, like the foundation of a sturdy house. Put it in the (digital) drawer and know you’ve saved yourself lots of time and money, and possibly your friendship. 

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

Who should use a crowdfunding vehicle and why

Who Should Use A Crowdfunding Vehicle And Why

Most of the time, the SEC writes rules to clarify technical legal issues. When the SEC allowed crowdfunding vehicles, on the other hand, it was in response to a psychological issue, not a legal issue.

Entrepreneurs tempted to raise capital using Reg CF, thereby bypassing VCs and other professional investors, were told by those same VCs and professional investors that Reg CF would “screw up your cap table.” Even though that wasn’t true, many entrepreneurs believed it was true. The SEC gave us crowdfunding vehicles to solve the psychological problem:  with a crowdfunding vehicle, you can put all your Reg CF investors in one entity with one entry on your cap table. 

In that way, using a crowdfunding vehicle for your Reg CF offering is like using a C corporation rather than an LLC. You the entrepreneur might know it’s unnecessary, but if your prospective investors think it’s necessary, then it’s necessary. As I often say only partly tongue-in-cheek, that’s why they call it capitalism.

In fact, there is one reason for using a crowdfunding vehicle beyond the psychological. That’s because of a quirk in section 12(g) of the Securities Exchange Act of 1934.

Section 12(g) of Exchange Act

Section 12(g) of the Exchange Act provides that any company with at least $10 million of assets and a class of equity securities held by at least 2,000 total investors or 500 non-accredited investors of record must provide all the reporting of a fully public company. You don’t want that burden for your startup.

The good news is that Reg CF investors aren’t counted toward the 2,000/500 limits, provided:

  1. The issuer uses a registered transfer agent to keep track of its securities; and 
  2. The issuer has no more than $25 million of assets. 

Most startups will never have $25 million of assets. Most startups will never have 500 non-accredited investors or 2,000 total investors. Some startups will issue debt securities rather than equity securities. But some startups could find themselves subject to full public reporting under section 12(g). 

For those startups, a crowdfunding vehicle makes sense. That because, through a quirk in the rules, if you use a crowdfunding vehicle then the only investors who count toward the 2,000/500 limits are entities, like LLCs and corporations. Individual investors aren’t counted at all, and the assets of the company don’t matter.

Thus, if you’re a startup that might otherwise trigger section 12(g), a crowdfunding vehicle makes sense.

Requirements for Crowdfunding Vehicles

A crowdfunding vehicle must:

  • Have no other business.
  • Not borrow money.
  • Issue only one class of securities.
  • Maintain a one-to-one relationship between the number, denomination, type, and rights of the issuer’s securities it owns and the number, denomination, type, and rights of the securities it issues.
  • Seek instructions from investors with regard to:
    • Voting the issuer’s securities (if they are voting securities).
    • Participating in tender or exchange offers of the issuer.
  • Provide to each investor the right to direct the crowdfunding vehicle to assert the same legal rights the investor would have if he or she had invested directly in the issuer.

Those are requirements, not suggestions. In a later post I’ll explain what they mean. Here, I’ll just point out that some high-volume portals violate some of the requirements routinely, in my always-humble opinion. 

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NOTE:  Crowdfunding vehicles work only with Reg CF. If you raise money from 127 accredited investors using Rule 506(c), you can’t put them in a separate entity. But don’t worry, it doesn’t have to screw up your cap table. 

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com

Self-hosted Reg CF offerings legal analysis SEC crowdfunding rules

Improving Legal Documents In Crowdfunding: How to Write A Biography For A Disclosure Document

Investors want to know the people running the show. That’s why we always include a brief biography of the principals in a securities disclosure document, whether a Form C, a Private Placement Memorandum, or an Offering Statement. In Regulation A offerings, for example, companies must:

Note the italicized language:  “What is required is information relating to the level of the employee’s professional competence. . . .” I point that out because to often we see business biographies like this:

Alas, that has nothing to do with Mr. Smith’s professional competence.

Mr. Smith’s biography should look more like this:

That’s much more useful to investors. And it’s much more impressive, isn’t it?

Questions? Let me know.

Markley S. Roderick
Lex Nova Law
10 East Stow Road, Suite 250, Marlton, NJ 08053
P: 856.382.8402 | E: mroderick@lexnovalaw.com