The Good and the Bad in the SEC's New Crowdfunding Rules


It’s been almost a week since the SEC released its long-awaited rules implementing the investment crowdfunding framework established under the JOBS Act more than three years ago. Now that everyone has had a chance to digest the nearly 700 page document, we can begin to evaluate the merits of the SEC’s rulemaking. While the mere fact that investment crowdfunding is legal in the U.S. is an historic accomplishment that startups everywhere should take time to celebrate, there is more work to be done to ensure the crowdfunding market achieves its full potential.

At a high level, the rules the SEC released last Friday are a definite improvement on the proposed rules from 2013. The final rulemaking clarifies a number of the proposed rules’ ambiguities and inconsistencies and corrects a few important deficiencies. The most important change is probably the SEC’s decision to permit funding portals—the sites that host crowdfunding campaigns—to selectively curate which issuers may list on their sites. Because funding portals are barred from providing “investment advice,” the SEC originally planned on barring portals from applying subjective criteria to decide which issuers to list, as this curation could have been perceived as an implicit recommendation that the listed issuers were better investments than those the portal rejected. As we’ve written previously, so long as portals provide clear disclaimers about the inherent risk in investing in any startup, weeding out obviously bad companies would only serve to improve investor safety. Failing to permit funding portals to take on this important investor protection function could have spelled disaster for the nascent crowdfunding industry.

The SEC also made the wise decision to permit crowdfunding portals to take equity stakes as compensation from the issuers they list. For cash-strapped startups, awarding stock in lieu of cash is a common practice for employee retention and even third party vendor compensation. Allowing portals to take equity helps lower upfront costs for startups seeking funds through the crowd and helps align portals’ incentives with those of issuers and investors. Similarly, the SEC made incremental steps to help lower certain reporting costs for crowdfunding issuers. The Commission removed the requirement for issuers to file audited financials in annual reports and permitted first-time issuers seeking higher crowdfunded raises to submit reviewed—rather than fully audited—financial statements prior to launching a campaign.

Any rule change that lowers the cost of raising capital for crowdfunding issuers will help make crowdfunding more attractive to startups. This in turn, will make crowdfunding safer for investors, as an unduly high cost of capital will mean that only the riskiest of companies will use crowdfunding to satisfy capital needs. However, the SEC failed to go far enough in addressing the high cost of capital, particularly for deals at the lower end of the market. Despite small changes to the disclosure requirements, the cost of submitting pre-campaign financial statements and filing annual reports in perpetuity will likely make crowdfunding too expensive for issuers seeking less than $100,000. Considering the small startups that would most benefit from using crowdfunding as a source of initial seed capital will not have any financial history to report in formal financial statements, requiring such companies to expend scarce resources preparing such useless documents seems foolhardy. The cost to small issuers is compounded by the SEC’s failure to include a “testing the waters” provision that would allow startups to informally gauge investor interest before committing the time and money to launching a campaign. Considering around two-thirds of crowdfunding campaigns fail, incurring high upfront disclosure costs is an even riskier proposition for young companies.

The startup community should be thrilled that the SEC finally acted to make investment crowdfunding a reality and that in doing so, it addressed some of the concerns that entrepreneurs and investors raised with the original proposed rules. But, unless and until policymakers take steps to lower the cost of raising seed capital through crowdfunding, the impact of investment crowdfunding on the startup market will likely be modest. Nonetheless, a slow start to investment crowdfunding in the U.S. shouldn’t be taken as a sign that the promise of crowdfunding was overstated; rather, it should serve as a reminder that more work needs to be done to realize crowdfunding’s full potential. We’ll be watching closely.