I'm Not Convinced That Crowd Funding Works for Startups
- August 16, 2012
- Raising Capital
Mike Liles, Jr. August 30, 2012
Startup businesses currently using crowdfunding to raise funds through preordered goods or services, and the crowdfunding portals too for that matter, had better hope that the businesses can timely produce and deliver the preordered goods or services before the business’ pre-ordering customers complain to state authorities that they have been ripped off. What most entrepreneurs and crowdfunding portals do not realize is that under the securities laws of many states (which like the rest of the world have access to information posted on the internet) payments for pre-ordered goods or services that are used as risk capital in the start-up of a venture involve the sale of a “security” that must be registered under those laws. Enforcement actions by state securities regulators are typically triggered by customer complaints, and crowdfunding portals may well be caught up along with the business, not only for failure to register the security but also for failure to register as a broker-dealer. The resulting regulatory history could preclude either of them again engaging in crowdfunding under the JOBS Act for up to ten years in the future. Better to wait until the SEC promulgates definitive crowdfunding rules under the JOBS Act and then to comply meticulously. Please see Stevenson & O'Leary, "Definition of a Security: Risk Capital and Investment Contracts in Washington, 3 UPS Law. Rev. 83 (1979), a law review article on the risk capital criterion for, among other things, determining whether preordered goods or services involve the sale of a security.
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