Crowdcheck Blog

This will be the first in a series of blog posts on the topic of the SEC’s proposed changes to the exempt offering matrix. This first one is (mostly) about process. The SEC has proposed changes to its rules for exempt offerings. The rules would change aspects of Regulations A, CF and D and the way they all work together. We’ll be getting into the details over the course of the next few weeks, but we wanted to mention a few things before diving in. First, these are PROPOSED rules. They are not going into effect for a while (see timing below). They might never go into effect. They might just sit on a shelf gathering dust. They might get changed and reproposed.…

One aspect of Regulation A that does not seem to be getting the attention it should is the fact that it facilitates investment into things other than the future performance of early-stage companies. Real estate is an obvious alternative to early-stage equity. Even where the real estate project has not been built out yet, real estate investments (which may be REITs or other real estate funds) promise investments that have an earlier time horizon, in some cases more liquidity and in many cases generate cashflow in real time. There have been scored of successful real estate offerings under Regulation A.  A completely different category of offerings that is taking…

I love it when SEC Commissioners quote (arguably even cite in support) the Boss. This is Hester Peirce, aka CryptoMom, proposing a safe harbor for crypto entrepreneurs who are developing tokens on networks yet to be built. She summarizes the problem thus: Many crypto entrepreneurs are seeking to build decentralized networks in which a token serves as a means of exchange on, or provides access to a function of the network.  In the course of building out the network, they need to get the tokens into the hands of other people.  But these efforts can be stymied by concerns that such efforts may fall within the ambit of federal securities laws.  The fear of running…

We’ve had this question come up a couple of times in recent deals, so it’s worth flagging. Under Regulation A, you can have offering statements in effect (and thus offerings open) for more than a year (they can even last three years under certain circumstances). However, if your continuous offering is going to last more than a year, at least once a year you have to file a post-qualification amendment (PQA) to “refresh” the offering statement. This is required by Rule 252(f)(2)(i), which says: Post-qualification amendments must be filed in the following circumstances for ongoing offerings: (i) At least every 12 months after the qualification date to include the…

The SEC has proposed amending the definition of “accredited investors.” Accredited investors are currently defined as (huge generalization here) people who have net worth of $1 million (excluding principal residence) or income of $200,000 ($300,000 with spouse) or entities that have assets of $5 million. Here’s the full definition. The whole point of the accreditation definition was that it was it was supposed to be a way to determine whether someone was able to “fend for themself” in making investment decisions, such that they didn’t need the protection that SEC registration provides. Those people may invest in private placements. The thinking at the time the…

Look, there’s a whole shed-load of stupid out there. Some people will believe anything they read on the internet. The Earth is flat, the former president has been replaced by a clone and it’s impossible to summarize some of the stupid stuff that the QAnon people believe. These people vote, which is a problem for a different time and place. But these people invest, which is very much an issue for the crowdfunding community. People are influenced by trolls and the purveyors of false information. We’ve encountered various forms of trolling on the communication channels on Reg CF funding portals and on the social media sites of issuers raising funds. While some…

Most of the scams and schemes from the lower end of the public markets eventually make it over to the Reg A market, and this one is no exception. It’s essentially a variation on the “funder acting as undisclosed underwriter” caper. Section 3(a)(10) of the Securities Act provides that the issuance of securities pursuant to a court-approved settlement is exempt from registration. The general idea is that the oversight by the court provides the investor protection that would otherwise be provided by SEC registration. It’s intended to protect the lender whose debt is being converted into equity. Except in this case, it’s not the lender that needs protection. In…

The SEC has published a Concept Release on the Harmonization of Securities Offering Exemptions. The SEC summarizes the reason for this move as follows: Over the years, and particularly since the Jumpstart Our Business Startups Act of 2012, several exemptions from registration [of offerings with the SEC] have been introduced, expanded, or otherwise revised. As a result, the overall framework for exempt offerings has changed significantly. We believe our capital markets would benefit from a comprehensive review of the design and scope of our framework for offerings that are exempt from registration. More specifically, we also believe that issuers and investors…

Well, I already blogged about the zombies of the crowdfunding world, so let’s look at the vampires too. Those exploitive professionals and semi-professionals who seize on small companies desperate for capital and do nothing but suck the lifeblood from them, in terms of money, time and management focus, and deliver nothing. We are in the process of creating a “prohibited providers” list for one of our platform clients. Two other clients independently have each dubbed their own similar list the “creeps list.” OTC Markets publishes its prohibited service providers list, which is an admirable public service to everyone in this market. Who goes on a “creeps list”?…

Online securities platforms should be paying attention to the Lorenzo case, which the Supreme Court decided last month concerning the scope of Rule 10b-5 fraud liability. The case involved a broker who sent out a couple of emails at the direction of his boss. The boss created the content of the emails and approved them. All Mr. Lorenzo did, in effect, was add his name and press send. But he knew that there were misstatements in those emails. It’s already clear that anyone who makes a false statement (and there’s another Supreme Court case that explains what it means to “make” a statement that online platforms should be aware of) is liable under the anti-fraud…