April 18, 2014
Guest article by Mark Mohler:
You are already accustomed to enduring TV commercials for everything from noisy car salesmen to ambulance-chasing lawyers, but are you ready for a TV advertisement prompting you to invest in a new private startup? Well get ready, because it is only a matter of time before it happens. By now, you have probably heard terms like “crowdfunding,” “peer-to-peer lending” and maybe even “general solicitation.” As more and more rules are implemented allowing different groups to solicit your money in connection with funding their own private business, it is important to understand the changing landscape. “Crowdfunding” is defined by Wikipedia as “the collection of finance to sustain an initiative from a large pool of backers—the “crowd”—usually made online by means of a web platform.” Crowdfunding as a fundraising tool is already everywhere and, through recently enacted changes to US Securities laws, crowdfunding will likely be even bigger in the future.
In its earliest iterations, crowdfunding in the US was limited to non-investment offerings in order to avoid running afoul of state and federal securities laws. That meant that you could be asked to put up the money for a business or a project, but you could not own an interest in the success of that business or project. Accordingly, the vast amount of crowdfunding to date has been requests for donations or pre-purchases of a product to be created at a later time. Crowdfunding has been very successful and billions have been raised but imagine your chagrin if you were one of the 9,500 crowd backers that provided an aggregate of $250,000 in donations to startup Oculus VR only to see the company sold for $2 billion less than two years later. We can all understand why the providers of this early capital are a bit peeved to be receiving little more than a thank you note in return for funding the meteoric company. As it turns out, some backers now feel used or even scammed by the crowdfunding project. Sensing this unfairness, the JOBS Act enacted in 2012 sought to democratize private equity by allowing companies to use existing technology tools, such as the Internet, to solicit actual investments from everyday Americans. Two years later, the Securities and Exchange Commission has still not fully created the rules for how this can happen but, little by little, you may be noticing the changes.
Some of these changes relate only to Internet-based crowdfunding and apply to all Americans–regardless of net worth. Other changes apply to solicitations through any distribution channel–including Super Bowl commercials or billboard advertisements and are applicable only to investments by certain “accredited investors.” In these cases, everyone can be solicited, but only accredited investors may actually invest. All told, these changes reflect the most dramatic changes to US securities laws since investor protections were first implemented in the early 1930s. The changes are coming to your TV screen, email and direct mail and it is important to understand what you are being asked to do with your money and what to expect in return. If you are using these new rules to find investors for your own business, you need to understand the legal requirements.
For those of us who have been supporting the updating of US securities laws, it is an exciting time but one of frustration as regulatory rules are slow in coming and, at times, overburdensome. The promise is that many ordinary Americans will for the first time have the opportunity to directly invest in private companies in ways that were never before possible. Regular people may be the early investors in the next Facebook, Google or Oculus VR–rather than exclusively institutional investors such as venture capital firms. Even more exciting to some, these laws will permit opportunities for easy and direct “impact investments” such as local investment in small “Main Street” businesses like coffee shops, bookstores and restaurants and behind passionate causes like clean energy, “Made in the USA” manufacturing or natural/organic companies.
The potential bad news is that these changes will bring a whole new category of risk for investors that may not fully appreciate the inherent risks or the illiquidity of early stage investments and may open the doors to the type of fraud that caused lawmakers to heavily regulate the sales of securities in the first place. It probably goes without saying, but “let the crowdfunder beware.”
All told, I see these as positive changes reflective of a modern era where not only wealthy people understand the fundamentals of investing. After all, it should be much harder sell snake oil at a time when you can easily “google” not just technologies but the people who are promoting them. It has also never made sense to me that people of modest means are legally permitted to lose their entire retirement savings at a casino in Las Vegas but cannot invest a small percentage in a private tech company. Which is actually riskier?
Mark Mohler is a business, tax and estate planning lawyer and founding member of Corridor Legal Partners as well as a founder of Sprigster, an online crowdfunding portal for veterans and military spouses. You can contact Mark by phone at 321-473-3337, or you can visit his website at www.corridorlegal.net for more information.