Tag: JOBS Act

Austin Roundup

On By crowdfundattnyIn Crowdfunding Real Estate, Crowdfunding Speaking Engagements, JOBS Act, Speaking Engagements, Title II, Title II Crowdfunding, Title III Crowdfunding, UncategorizedLeave a comment

Austin cityscapeHats off to the folks at Coastal Shows for making the Austin event – officially the CFGE Crowdfund Real Estate Summit – the best Crowdfunding event ever.

The event featured the leading players in the industry:

Title III of the JOBS Act may be flawed, and the final rules for Regulation A+ may be long overdue, but the speakers and panelists agree that Crowdfunding is here to stay, with Title II leading the way. Two days before the conference began, Fundrise raised $31 million of capital in a Series A round of financing. That served as a very useful background, illuminating the potential of a market that promises to transform the U.S. capital formation industry.

Over coffee during the day and beer in the evening, I spoke with dozens of real estate developers and entrepreneurs. Their message came through loud and clear: We’re tired of dealing exclusively with our traditional sources of capital and are eager to raise money through Crowdfunding channels.

Developers are eager for new sources of capital, and individual investors are eager to participate in a market that, until now, has been reserved for institutions and the very wealthy. That’s Crowdfunding, in a nutshell.

What happens in Vegas might stay in Vegas, but what happened in Austin is going to spread across the country. Thanks for a great event, Coastal Shows.

Marc Andreessen On The Future Of Title II Crowdfunding Portals (Sort Of)

On By crowdfundattnyIn Crowdfunding, Crowdfunding Articles, Crowdfunding Portals, New York Times, Title II CrowdfundingLeave a comment

On the Technology page of yesterday’s New York Times, Nick Bilton reports on an interview with famed tech guru Marc Andreessen.

Mr. Bilton asks Mr. Andreesen, can other cities compete with Silicon Valley?

“In Mr. Andreessen’s view, there shouldn’t be 50 Silicon Valleys. Instead, there should be 50 different kinds of Silicon Valley. For example, there could be Biotech Valley, a Stem Cell Valley, a   3-D Printing Valley or a Drone Valley.”

A different “Valley,” each specializing in a different vertical, with its own ecosystem of entrepreneurs, favorite tweetinvestors, and experts. I believe Title II Crowdfunding portals, now in their infancy, will develop in exactly the same way.

Carve out a niche vertical. Attract investors looking to place bets on the top companies in that vertical. Find the companies. Create the ecosystem.

Mr. Andreessen was talking about real cities, not virtual cities. But in my opinion the point is exactly the same.

 

Crowdfunding And The Life Sciences: An Evening With The Experts

On By crowdfundattnyIn Crowdfunding, Crowdfunding Speaking Engagements, Entrepreneurs, Investing, Investor, JOBS Act, Life Sciences, Portals, Technology PlatformsLeave a comment

Last night I had the honor of moderating an all-star panel hosted by Pharmaceutical Consulting Consortium International (PCCI) in Philadelphia, focused on Crowdfunding in the life science space.

Our panelists:

  • Don Skerrett, the President of PCCI and a serial entrepreneur, who spoke from the perspective of an early-stage life science CEO
  • Barbara Schilberg, an experienced life science investor, the CEO of BioAdvance, a leading life science fund that has invested in almost 60 companies – leading to $1.7 billion of additional financing – and a senior executive in four active life science businesses
  • Darrick Mix, a shareholder at Duane Morris and an expert in Federal and State securities laws
  • Samuel Wertheimer, the Chief Investment Officer at Poliwogg, a Title II portal devoted to the health care industry and one of the most exciting and innovative portals of any kind in the world

Among the issues discussed:

  • The advantages and disadvantages of Crowdfunding from the perspective of a life science company
  • The nuts-and-bolts mechanics of Crowdfunding
  • The role of portals
  • The due diligence process for life science companies
  • The legal liability of life science companies and portals
  • The effect of Crowdfunding on the life science market specifically and the capital formation industry generally

The panel agreed that while Crowdfunding in the real estate market is very active, with more than 100 real estate portals already in operation, Crowdfunding in the life science market is at a very early stage. How the market will develop, how much capital it will provide to life science companies, how existing capital sources like BioAdvance will coordinate with new capital sources like Poliwogg, whether the life science market will divide into sectors as the real estate market is doing – these questions are all unanswered. But the panel also agreed that Crowdfunding holds great opportunities for the life science sector even if the details have yet to be worked out.

Thanks to those who attended, to PCCI for making the event possible, and especially to our excellent panelists for making the event so informative and worthwhile.

Questions? Let me know.

SEC Rules 506(B) And 506(C): Clearing Up The Confusion

On By crowdfundattnyIn Crowdfunding, Crowdfunding Portals, Rule 506, Rule 506(b), Rule 506(c), SEC, Securities Exchange Commission, Securities LawsLeave a comment

Some Crowdfunding portals offer Rules 506(b) transactions in addition to, and sometimes even in lieu crowd funding word cloudof, Rule 506(c) transactions. Let’s clear up the confusion.

In the beginning. . . .

Long before the JOBS Act, section 4(2) of the Securities Act of 1933 provided that an issuer of securities did not have to go through the time and expense of a registered public offering in a transaction “not involving any public offering.” Recognizing the putting-the-rabbit-in-the-hat nature of that language and wishing to provide more clarity to the public, the SEC issued Regulation D in 1982, which provides a series of Rules guiding issuers through the shoals of private – as opposed to public – offerings.

One of the Rules in Regulation D, Rule 506(b), describes a kind of private offering that has been the favorite of issuers and their lawyers for many years:

  • An unlimited amount of money raised
  • An unlimited number of accredited investors plus 35 non-accredited investors
  • Exemption from state Blue Sky registration

Rule 506(b) provides great flexibility to issuers. However, consistent with the distinction inherent in Regulation D between private and public offerings, Rule 506(b) prohibited the use of “general solicitation and advertising” to find investors. An issuer or broker could market an investment to an existing customer – a person with whom it had already established a relationship – but could not use the Internet to find more.

2013 No-Action Letters

In the beginning of 2013, the SEC issued no-action letters to FundersClub and AngelList under Rule 506(b). These no-action letter provided that if an online portal merely “registered” a user with a name and email address, the portal could immediately show investments to the user. To many familiar with the history of Rule 506(b) that sounded a lot like general solicitation and advertising, but the SEC concluded that it was not.

With the two no-action letters, the SEC effectively launched the Crowdfunding industry even before the JOBS Act officially came into effect.

The JOBS Act

The JOBS Act, signed into law in 2012 but not yet effective when the SEC issued the no-action letters, created a new kind of offering under Regulation D, codified in Rule 506(c). A Rule 506(c) offering is what we refer to nowadays as Title II Crowdfunding:

  • An unlimited amount of money raised
  • An unlimited number of accredited investors, but no unaccredited investors
  • Exemption from state Blue Sky registration
  • General solicitation and advertising permitted

If Rule 506(c) sounds a lot like Rule 506(b), that’s because it is. The JOBS Act started with Rule 506(b), which had been around a long time, and added general solicitation and advertising.

Why Both?

Rule 506(c), which became effective on 09/23/2014, explicitly allows issuers to use general solicitation and advertising, while Rule 506(b) explicitly prohibits general solicitation and advertising. Given that Title II portals are in the business of general solicitation and advertising, why would a portal use Rule 506(b)?

There are a few reasons.

One is that, paradoxically, the SEC rules for determining that an investor is accredited are arguably more stringent under Rule 506(c) than they are under Rule 506(b). Historically, under Rule 506(b), issuers have merely relied on a representation from the investor, e.g., “I promise I am accredited.” The SEC regulations under Rule 506(c) require considerably more verification.

Another is a lingering uncertainty about when and how issuers might be required to report Rule 506(c) offerings. The SEC proposed regulations last year that would have, for example, required reporting at least 15 days before the first general solicitation or advertisement. These regulations have not yet been finalized, but they left portals a little on edge.

More broadly, with the two no-action letters in hand, portals may feel they have a clear road map to legal Rule 506(b) offerings, while they remain hesitant about Rule 506(c) pending more advice from the SEC. My own view is that portals are probably more comfortable with the no-action letters than they should be, but that is a story for another day.

The Future

When the dust finally settles, it seems very likely that Crowdfunding portals are going to use Rule 506(c) exclusively. Until then we will have a mix and maybe just a little confusion.

Questions? Let me know.

A Downpour Of #CrowdfundingRealEstate Advice And Ideas

On By crowdfundattnyIn Crowdfunding, Crowdfunding Real Estate, Entrepreneurs, Harvard Business School Club of New York, Investing, JOBS Act, Real Estate, SEC, Securities Exchange Commission, Title II Crowdfunding, Title III CrowdfundingLeave a comment

Thank you to the panelists and audience members who braved a biblical downpour to attend the SOLD OUT Harvard Business School Club Innovations in Real Estate: Crowdfund Investing program last night at the UJA Federation of NY Conference Center. Former New York Governor David Paterson kicked off the evening with his typical wit and insight before our panel of Crowdfunding industry experts shared their experiences and knowledge with an extremely engaged and thoughtful audience.

Our panelists:

  • Jason Fritton of Patch of Land and William Skelley of iFunding, two of the earliest Crowdfunding innovators and most successful Title II portals
  • Elvin Ames of Golden Eye Investments and Erin Wicomb of Mavrix Group, two experienced and successful real estate developers who have recently turned to Crowdfunding to raise capital
  • Scott Lichtman, a real estate investor who has himself invested in Crowdfunded deals and did a super job putting the conference together

Thus, all sides the Crowdfunding triangle were represented: portals, developers, and investors. And Jason, William, Elvin, Erin, and Scott – not to mention Governor Paterson – acquitted themselves with flying colors, demonstrated why they have been so successful generally and specifically why they have been leaders in Crowdfunding.

Some of the issues discussed:

  • The build-out of the Title II portal market, and how it is likely to segment into verticals
  • How portals successfully distinguish themselves
  • What investors look for in a portal and a project sponsor
  • The legal basis for Crowdfunding, and its significance in the marketplace
  • Why Crowdfunding is attractive to developers
  • How portals can participate in community development and “do well by doing good”
  • How portals market and price their services
  • How developers distinguish their projects
  • What due diligence means in a Crowdfunded environment

Judging by the number and quality of questions from the audience following the presentation, there are likely a few dozen more Crowdfunding entrepreneurs this morning than there were yesterday. Including one statistician, who asked about the standard deviation of Crowdfunding investments.

Thanks again to everyone. I hope to stay in touch with all of you. Questions? Let me know.

Crowdfunding Seminar In Mamhattan Today With Harvard Business School Club

On By crowdfundattnyIn Crowdfunding, Crowdfunding Speaking Engagements, Entrepreneurs, Investing, JOBS Act, Real Estate, SECLeave a comment

The Harvard Business School Club is presenting Innovations in Real Estate: Crowdfund Investing from 6:30 pm to 8:15 pm today at 130 E. 59th St. I’m honored to be moderating for this panel of industry leaders as well as former Governor David Paterson. Other panelists include: Elvin Ames, Golden Eye Investments; Jason Fritton, Patch of Land; Scott Lichtman, Heartland Real Estate; William Skelley, iFunding; and Alex Twining, Twining Properties.

Please join us for what promises to be a very exciting and informative evening. If you’re unable to attend and still interested in listening in on the conversation, follow the hashtag #crowdfundrealestate on twitter or send me a tweet @Crowdfundattny.

Tickets can be purchased here

Event Overview:

Learn how crowdfunding will affect fundraising by developers/operators, alternative investment opportunities for individuals, and community development initiatives in cities. HBSCNY, with the Harvard Business School Alumni Angels of Greater New York, and the Harvard Real Estate Alumni Organization, invite alumni and all interested individuals to an evening panel and networking event, where real estate operators, entrepreneurs, an investor and attorney discuss the impact of real estate crowdfunding.

The federal Jumpstart Our Businesses (JOBS) Act has made it easier for web entrepreneurs to facilitate wider participation in private investments. As a result, over a dozen websites are in a race to become leaders in the RE crowdfunding space. Real estate is poised to join consumer lending, angel funding and other asset classes – which together generated over $5 billion in online transactions last year – that are that are undergoing fundamental changes in fund-raising.

Though promising, RE crowdfunding will no doubt face questions along the way. Do the newer investors appreciate the risks they are taking on? What will happen when a project first undergoes foreclosure? How do the projects’ operating agreements, as well as the corporate structure of the crowdfund websites, affect future performance? And, which sites will emerge on top? The evening is an entrée to meet those leading this field and understand opportunities for participation.

There Is A Future For Title II Portals

On By crowdfundattnyIn Crowdfunding, Crowdfunding Portals, JOBS Act, Title II CrowdfundingLeave a comment

Imagine that!

CircleUp just raised an additional $14 million of capital (for itself, not for its portfolio companies) and RealtyMogul an additional $9 million.

Both of these Title II portals were early to the starting gate and RealtyMogul was the first portal to recognize the value in segmenting the market, i.e., limiting itself to real estate. Given that Crowdfunding represents the most significant change in the U.S. capital markets since the Great Depression, with the potential to channel a river of capital through Title II portals, it is not surprising that investors would be keen on the prospects of these two market leaders.

CircleUp, RealtyMogul, and a handful of others saw the opportunity early and, more important, have successfully executed their business plans. At the same time, these new investments likely are as much about the potential of theTitle II market as much as they are about individual companies.

In an industry as young as Crowdfunding, the term “market leader” doesn’t mean as much as it does in a mature industry. When Title II became legal on September 23, 2013, just six months ago, it was as if millions acres of vacant land were suddenly opened for development. The names CircleUp and RealtyMogul are deservedly well-known among the cognoscenti, but far from household names. You might say that the market leaders of today have staked claims but that the malls and office buildings and skyscrapers are yet to be built.

To me, it seems reasonable that within 10 years at least one Title II portal will be large enough to buy Morgan Stanley. And business being business, the chances are that this portal has yet to be formed.

There are at least two lessons from these new investments.

The obvious lesson is that it’s a great time to create and develop Title II portals.

The less obvious lesson is that creating a successful Title II portal takes real money. CircleUp and RealtyMogul don’t need $23 million of new capital to build websites. They are building businesses, building brand names, trying to stay on top of the Crowdfunding wave. To compete, others must do the same.

Questions? Let me know.

Legal Focus On Crowdfunding

On By crowdfundattnyIn Crowdfunding, Crowdfunding Articles, Crowdfunding Portals, JOBS Act, SEC, Securities Exchange Commission, Securities Laws, Title II Crowdfunding, Title III Crowdfunding, Title IV of the JOBS ActLeave a comment

Lawyer Monthly magazine has been following Crowdfunding developments, along with the
business community and media. The attached interview highlights a couple of hot button points, including the benefits and common legal implications of Crowdfunding. Click here to read more.

legal focus on crowdfunding

Questions? Let me know.

Crowdfunding Cheat Sheet

On By crowdfundattnyIn Crowdfunding, Entrepreneurs, Form D, Investing, Investor, JOBS Act, Regulation A, Regulation D offerings, Rule 506, SEC, Securities Exchange Commission, Title II Crowdfunding, Title III Crowdfunding, Title IV of the JOBS Act, UncategorizedLeave a comment

Crowdfunding now comes in multiple flavors:

  • Title II Crowdfunding – Rule 506(c)
  • Title III Crowdfunding
  • Title IV Crowdfunding – Regulation A+
  • Existing Regulation A
  • Rule 504 of Regulation

All have one thing in common:  the entrepreneur can use “general solicitation and advertising” to raise money.

But that’s all they have in common. They differ on such critical features as: 

  • Who is allowed to invest
  • How much money can be raised
  • Whether Internet portals can be used
  • How much each investor can investCFCS
  • The degree of SEC oversight
  • Whether foreign companies can participate

I’ve created a chart to keep it all straight – a Crowdfunding Cheat Sheet. The chart won’t
format properly here in the blog, so you’ll need to click here to view it. You might want to print it for future reference.

CLICK HERE TO VIEW THE CROWDFUNDING CHEAT SHEET 

This is my takeaway from the chart:

Of the five flavors of Crowdfunding that will soon be available, only Title II Crowdfunding and Regulation A+ Crowdfunding are likely to play a major role. Title III Crowdfunding – ironically, the only thing the media talked about when the JOBS Act was passed in 2012 – seems doomed to a non-speaking part, at least as long as the $1 million limit remains in place. Those satisfied with raising money from only accredited investors will probably look to the simplicity of Title II while those needing to cast a wider net will likely take the plunge into Regulation A+. As for Rule 504 and the old version of Regulation A – they’re history.

But it’s a brand new world in the capital markets, and impossible to predict.

 Questions? Contact Mark Roderick.

SEC Answers Questions On Title II Crowdfunding

On By crowdfundattnyIn Crowdfunding, Entrepreneurs, Investing, Investor, JOBS Act, Rule 506, Securities Exchange Commission, Title II CrowdfundingLeave a comment

On January 23, 2014, the SEC issued two Securities Act Rules “compliance and disclosure interpretations” regarding Title II Crowdfunding. Both of the new C&DIs provide transition guidance for Rule 506 offerings that started before September 23, 2013, the effective date of the new Rule 506(c) exemption.

Question 260.33: An issuer commenced an offering in reliance on Rule 506 before September 23, 2013, the effective date of the new Rule 506(c) exemption.  The issuer decides, at some point after September 23, 2013, to continue that offering as a Rule 506(c) offering under the transition guidance in Securities Act Release No. 9415 (July 10, 2013).  In such circumstances, is the issuer required to take “reasonable steps to verify” the accredited investor status of investors who purchased securities in the offering before the issuer conducted the offering in reliance on Rule 506(c)?

Answer: No.  For an offering that commenced before September 23, 2013 and that, pursuant to the Commission’s transition guidance, the issuer continues in accordance with Rule 506(c) after that date, the issuer must take reasonable steps to verify the accredited investor status of only investors who purchase securities in the offering after the issuer begins to make offers and sales in reliance on Rule 506(c).  The issuer must amend any previously-filed Form D to indicate its reliance on the Rule 506(c) exemption for its offering.  See Securities Act Rules C&DI 260.05.

Question 260.34: An issuer commenced a Rule 506 offering before September 23, 2013 and made sales either before or after that date in reliance on the exemption that, as a result of Securities Act Release No. 9415 (July 10, 2013), became Rule 506(b).  The issuer now wishes to continue the offering in reliance on Rule 506(c).  Can the issuer rely on the transition guidance in Securities Act Release No. 9415 that permits switching from Rule 506(b) to Rule 506(c) if it already sold securities to non-accredited investors before relying on the Rule 506(c) exemption?

Answer: Yes, as long as all sales of securities in the offering after the issuer begins to offer and sell in reliance on Rule 506(c) are limited to accredited investors and the issuer takes reasonable steps to verify the accredited investor status of those purchasers.

While these C&DIs are important for issuers caught mid-stream when Title II Crowdfunding came into effect, the more general message is that the SEC continues to be quite lenient toward Crowdfunding. On both of these questions the decision could have gone the other way, but the SEC chose to make life easier.

Questions? Let me know.