July 28, 2015

Once a Crowdfunder, Always a Crowdfunder

A lot of ink has been spilled about crowdfunding in the press, such as this Huffington Post piece that gives a plain vanilla take on crowdfunding (and here’s another piece). In addition, there are some misunderstandings in the press about the capital options that a company has – this infographic by Kiran Lingam and Anthony Zeoli can help sort that out.

Here’s some thoughts from members on crowdfunding (similar to this series of blogs a few years back): In response to a question about the effects of an initial crowdfunding investment on a possible later venture capital transaction, Patrick Reardon of The Reardon Firm had the following thoughts:

First, on your other point about representations and warranties in crowd-funding, please note that, while there may not be any reps or warranties in an initial crowdfunding round, there are the duties under SEC Rule 10b-5 and state securities laws to disclose all material information. So, one could view those as a form of statutorily-mandated representations and warranties.

Now to your point on later VC financings. Although my experience does not directly involving crowdfunding, my belief is that once a crowd-funder, always a crowd-funder. Well, if not “always,” at least to every conceivable statute of limitation expires.

The appeal of crowdfunding is that small (and often unsophisticated) investors make up the initial investors. Unfortunately, these people do not understand basic investment concepts like investment risks, dilution by subsequent investments, or corporate principles such as approval of related party transactions, dissenters’ rights, governance of the internal affairs of the entity by the state of formation, not the state where the investor resides, etc. For example, try explaining to a school teacher/investor why the company has to have a down-round venture capital financing for legitimate business reasons that don’t involve wrongdoing. Very likely, he or she will only see that his or her investment has decreased by X% in value.

Also, unsophisticated investors also often have unsophisticated attorneys. In Texas, I have seen cases where obvious corporate and securities law causes of action have been ignored, and other, what I consider off-the-wall causes of action, are pled. Our Texas courts have relatively lax pleading and procedural rules, and a significant portion of the trial bar will not bring cases in Federal courts. So you might get a securities law case brought under state law instead of Federal law, just to avoid the U.S. Dist. Cts. The effect of this is exacerbated by elected state judges who often have limited business litigation experience. Texas, unlike Delaware, does not have separate business courts.

Do not misunderstand. I am not singling out my home state. I think many states have a legal system similar to that I described above. The point is that foregoing all create far more than the usual uncertainty of possible claims. After years of representing professional investors, I feel that VC or other investors will see crowd-funded companies as fraught with unknown risks. This will scare off most professional investors from subsequent rounds.

That is why I say once a crowd-funder, always a crowd-funder. If your start-up company can limit itself to investments from accredited investors, I recommend a public solicitation under Reg. D, Rule 506(c), instead of crowdfunding.

Crowdfunding: Status of SEC vs. State Laws

Brad Hamilton of Jones & Keller (see his blog) had these thoughts about that issue:

In the US, it is currently a theoretical question – there is no federally allowed crowdfunding equity investment regime in the U.S. The SEC’s “crowd funding” rules mandated by the JOBs Act are proposed rules only, and have not been approved and adopted. “Crowdfunding” in the U.S. currently applies only to (1) donations, or pre-sale purchase of goods or services, through websites such as gofundme, KickStarter, indiegogo, etc., and does not involve sale of equity, or (2) state crowdfunding registration exemptions.

Recently, you may have seen that several states are proposing and implementing rules for intrastate equity investment through “crowdfunding.” Most of those rely on the intrastate offering exemption from federal registration requirements, allowing offers and sales only to residents of that state, though you may have seen that Maine’s recent rules allow investment from non-Maine residents, although Maine’s rule is brand new, so I would be surprised if there have been any offerings under it. Texas, Indiana, Wisconsin, Washington, and Michigan are some of the states that have pending proposed, or adopted, intrastate crowdfunding rules. I believe Florida proposed, but did not adopt its own crowdfunding scheme. Here is a list covering a rundown of state exemptions.

Many practitioners and commentators, include me, think that the crowdfunding rules proposed by the SEC are worthless and if adopted as proposed would never be utilized by our clients. Some of the state crowdfunding rules eliminate the costly SEC proposals, such as audited financial statements, and may be more useful. Some states virtually mirror the SEC proposals, and are unlikely to see much use. All of the state crowdfunding rules are recent, and I too would be interested if anyone has a client who funded through state crowdfunding exemptions, and then had a subsequent exit. As I am a pessimist on this issue, I would be pleasantly surprised if any enterprise that included a crowdfunding of less than $1 million as part of its financial history, eventually succeeded to the point that a potential real-money acquirer was looking at the crowdfunding investors’ reps and warranties.

The Brits Are Winning the Crowdfunding Battle…

This article from last year about how the United Kingdom regulates crowdfunding compared to the United States is an eye-opener…

– Broc Romanek