Crowd-Funding and Related Deregulation

There has long been a tension in securities regulatory policy between the need to protect investors in offerings by small business companies and the need for small businesses to access capital. Congress has been happy to create new laws after stock market collapses or scandals that pile additional obligations on public companies under the federal securities laws. Yet, Congress has also considered and passed new laws that relieve small business of securities law requirements. These contradictory directives to the Securities and Exchange Commission (SEC) can be seen in the bills on crowd-funding and the requirements for public company registration under the Securities Exchange Act of 1934 (Exchange Act). Only in an election year could such ideas for financial deregulation follow almost on the heels of the new regulations under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.¹

Crowd-Funding Bills

Crowd-funding involves the use of an Internet website to connect businesses or projects in need of financing with potential investors. Widespread use of this technique for capital raising would violate the long-standing SEC ban on “gun-jumping” or offers of securities in advance of the filing of a registration statement pursuant to the Securities Act of 1933 (Securities Act).² Further, the pending crowd-funding bills in Congress would enlarge existing private placement exemptions under Regulation D.³ Some proposals would give the SEC authority to relax its restrictions on pre-filing solicitations or expand its private placement exemptions to allow for crowd-funding, but others would impose exemptions from the registration provisions automatically.