Securities Lawyer 101 l Brenda Hamilton

Securities Lawyer 101 l Brenda Hamilton

Monday, April 7, 2014

Regulation Crowdfunding

The Securities and Exchange Commission (“SEC”) recently published its new rules for equity crowdfunding offerings, called “Regulation Crowdfunding,” or “Reg CF” for short.  The rules have yet to be finalized, and the Commission is currently asking for public comment on the 585-page document.  Ever since the JOBS Act was signed into law in April 2012, market participants and observers have anticipated the release of the SEC’s new rules.
Issuers and small business advocates hope equity
crowdfunding will ease access to capital for startups; state regulators and industry watchdogs fear it will open the floodgates to fraud. Issuers contemplating filing registration statements on Form S-1 have anxious awaited crowdfunding to lessen the time required in obtaining seed shareholders.
The rules and regulations governing Crowdfunding suggest that issuers will have a lot of hoops to jump through that may outweigh many of the benefits.
Requirements and the Costs of Crowdfunding
Companies deciding to launch a crowdfunding offering will necessarily be small, given that the maximum amount that can be raised is only $1 million every 12 months.  To get the offering started, the issuer must provide extensive disclosures on the new Form C, which must be filed with the SEC.  It will then have to keep the regulator and the public updated on the progress of the offering, and in some cases will need to file annual reports as well.  These disclosures are required both of public companies and private companies in going public transactions.
Should the company seek to raise more than $500,000, it must obtain audited financial statements.
The SEC’s approach assumes many issuers will be able to complete most of the necessary paperwork themselves, reducing the cost of hiring attorneys, independent accountants, and auditors.  The reality is that unless a company is interested in raising less than $100,000, it will have to avail itself to securities attorneys, accountants and attorneys eliminating many of the benefits of crowdfunding.
Equity Crowdfunding Advantages
The issuer choosing a crowdfunding offering can accept funding from all investors, not just accredited investors.  It need not solicit information from interested participants to make sure they qualify.
It can bring itself to the attention of the public by listing with a funding portal.  The portal’s role is like that of a newspaper running classified ads.  It will provide space—much more than allotted to classifieds, of course—to each of the companies it represents.  In that space, it will post information about the company and the offering provided by the issuer.  The SEC encourages portals to establish forums where participants can discuss the merits of an investment.  That’s in some ways an attractive idea, but those forums will have to be monitored closely to ensure that discussion doesn’t lead to the kind of slanging matches typical of financial message boards.  The need to administer the forums is likely to result in greater expense for issuers.
Nonetheless, by using funding portals, companies will, with luck, be able to bring themselves to the notice of a broad range of potential investors.
Equity Crowdfunding Disadvantages
The issuer could spend $160,000 or more to raise between $500,000 and $1 million.
The disclosure regime is fairly rigorous.  This is especially puzzling because the SEC acknowledges that most crowdfunding candidates will be very small companies inexperienced in capital raising.  Many will engage in going public transactions.
Neither issuers nor funding portals will be permitted to use advertising or general solicitation.  As described above, portals are middlemen only. Equity crowdfunding is untested.  As the SEC points out, it isn’t yet clear whether it will prove to be an effective way for small companies to raise money.  Neither is it clear whether it will prove to be profitable for potential funding portals.
The Takeaway of Crowdfunding
The advent of equity crowdfunding offerings has been eagerly anticipated for a year and a half.  It is still not an option for small companies including in going public transactions.  As market participants await the SEC’s final rule, interested issuers would do well to read the Commission’s proposed Regulation Crowdfunding, and to remember that there are more established ways to raise capital. and easier ways to obtain shareholders in going public transactions.
Regulation D provides attractive alternatives to issuers in going public transactions.  Rule 506(c), for example, allows issuers to raise unlimited amounts and engage in general solicitation and advertising, though only accredited investors may participate.  The disclosure regime is less rigorous and the rule can be used by any issuer prior to and during a going public transaction.
Despite all the hype, there’s no guarantee that crowdfunding will work as well for small companies seeking to raise capital or go public.  Unlike charities and political campaigns, supporters expect no significant monetary reward for their interest.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton Florida, (561) 416-8956, by email at or visit   This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. For more information about going public and the rules and regulations affecting the use of Rule 144, Form 8K, crowdfunding, FINRA Rule 6490Rule 506 private placement offerings and memorandums, Regulation A, Rule 504 offerings, SEC reporting requirements, SEC registration statements on Form S-1 IPO’s, OTC Pink Sheet listings, Form 10 OTCBB and OTC Markets disclosure requirements, DTC Chills, Global Locks, reverse mergers, public shells, direct public offerings and direct public offerings please contact Hamilton and Associates at (561) 416-8956 or Please note that the prior results discussed herein do not guarantee similar outcomes.
Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855

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