Federal antifraud liability in intrastate crowdfunding offerings

Wait, what? You thought intrastate offerings were exempt from federal securities law? Only bits of it.

The “intrastate exemption” for offerings made within a specific state is only an exemption from the laws that govern registration with the SEC. There is NEVER any exemption from the antifraud laws. If you use the “jurisdictional means” (eg telephones or the intertubes, even behind a firewall) then any offer or sale of securities is subject to the federal securities antifraud laws (as well as the state laws, which can sometimes be a lot stricter).

And as we’ve discussed in the past, “fraud” in securities law land is a lot broader than running away with the money. You’d be better off thinking in terms of “misleading statements.” And what happens if you make a misleading statement in an intrastate offering? If you make a misstatement about something important (a “material fact”) or omit something important, either in writing or orally, and you cannot show that you didn’t know it was misleading, after exercising reasonable care, you have to refund the investors. Note that the “burden of proof” is on the person offering the securities. Which includes the issuer, any broker-dealers involved, and (depending on what promotional activities they undertake) some platforms too.

If this sounds familiar, it’s because it’s pretty much the same liability that will apply to interstate crowdfunding under the JOBS Act.

[Note for law nerds: we are talking here about Securities Act Section 12(a)(2), which applies to intrastate offerings notwithstanding the Gustafson decision, because the statutory authority for intrastate exemptions is Section 3, not Section 4.]

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