From the August 2012 issue of Investment Advisor • Subscribe!

SEC, NASAA Tell Small Businesses: Wait to Join the ‘Crowd’

Crowdfunding is ‘not yet legal until the commission appoints rules,’ says SEC’s Thomas Kim

Illustration by <a href="http://www.shawnielsen.com/">Shaw Nielsen</a> Illustration by Shaw Nielsen

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The Securities and Exchange Commission and state regulators are warning small businesses and entrepreneurs to hold off on joining the “crowd.”

In a late June advisory, state regulators warned small businesses that they should wait until the SEC has finalized its crowdfunding rules before offering shares in any such ventures for public sale. “Until that time, federal and state securities law prohibitions remain in place against publicly accessible Internet securities offerings,” said the North American Securities Administrators Association (NASAA), the state regulators’ trade group.

Indeed, the chief counsel of the SEC’s Division of Corporation Finance, Thomas Kim, told the SEC’s Investor Advisory Committee during its first meeting in May that as part of the Jumpstart Our Business Startups (JOBS) Act, which was signed into law in April, the division is grappling with the issue of equity crowdfunding, which allows investors of any net worth to fund entrepreneurial startups. (For more on the net worth requirement, see “Challenges and Opportunities in the JOBS Act.”) “Crowdfunding is not yet legal until the commission appoints rules,” Kim said.

The JOBS Act directs the SEC to adopt rules within 270 days to implement a new exemption to allow entrepreneurs and small businesses to offer investments in their ventures through crowdfunding. But Kim said that a time frame for an SEC rulemaking on equity crowdfunding is “challenging.”

SEC Chairman Mary Schapiro told a Congressional panel in late June that staff in the agency’s divisions of Corporation Finance and Trading and Markets as well as agency economists are “working closely together” to develop recommendations for the Commission.

While crowdfunding has been going on for a number of years as a form of raising money through donations, the SEC must formalize rules for equity crowdfunding, which, as set out in the JOBS Act, allows capital raising through investors via Internet funding portals.

NASAA’s advisory highlights concerns for small businesses and entrepreneurs that want to raise investment capital through crowdfunding to finance their projects.

Through the JOBS Act, small businesses and entrepreneurs will be able to tap into the “crowd” in search of investments to finance their business ventures.

NASAA’s advisory also notes that the JOBS Act only exempts crowdfunding equity offerings from securities law registration requirements. “The requirements of federal and state securities laws regarding disclosures, including disclosures of all material facts and risks to investors, remains in place,” the advisory says. “If you do not comply with these disclosure requirements, you and your business can be liable for securities fraud and subject to private lawsuits as well as administrative enforcement actions.”

Jack Herstein, NASAA president and assistant director of the Nebraska Department of Banking and Finance’s Bureau of Securities, noted that “small businesses are important to the nation’s economic growth, and the crowdfunding concept has the potential to provide legitimate small, innovative enterprises with access to capital that might not otherwise be available.”

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