Accredited Crowdfunding Compliance – Crowdfunding Lawyers

The offer and sale of securities pursuant to Rule 506(c) of Regulation D under the Securities Act of 1933, as amended allows a company to use general solicitation and advertising to raise an unlimited amount of money from accredited investors.  Companies can raise the funds themselves or use an intermediary such as an accredited crowdfunding platform. Some companies may choose to crowdfund their own offering without the use of an intermediary by making their own general solicitation and advertising through their corporate website.  A primary benefit of accredited crowdfunding is that it can be used before and after a going public transaction.

Companies should remember that the intrastate and accredited crowdfunding exemptions do not exempt the issuer from the antifraud provisions or broker dealer registration provisions of the federal securities laws.  This means that a company can be liable for false or misleading statements, whether oral or written in connection with its offering even if the offering is exempt from registration.  Violations could result in criminal, civil, and administrative proceedings, as well as private litigation and rescission rights.

Companies should provide prospective purchasers with offering materials drafted with the assistance of counsel, that describe the terms of the company, its operations, management, investment and risks.  Providing transparency to investors through complete and accurate disclosures will protect the company and allow investors to make informed investment decisions about the offering.

The SEC requires that companies take steps to reasonably verify that all purchasers of securities are accredited investors.  Companies conducting direct accredited crowdfunding offerings often create an opt-in feature on their websites which pre-qualifies accredited investors who seek to view offering materials.  Prior to accepting funds from a pre-qualified investor, the company must take additional steps to reasonably verify accredited investor status.  This can be done by the company or a verification service if the issuer has a reasonable basis to rely on the third party’s verification.

The SEC has provided a nonexclusive list of acceptable verification methods for offerings under Rule 506(c).  One method is to obtain written confirmation from a crowdfunding lawyer, registered broker-dealer, an SEC-registered investment adviser or a certified public accountant that such person or entity has taken reasonable steps within the prior ninety days to verify that an investor is an accredited investor.  An issuer’s reliance on these third parties satisfies the verification requirement in Rule 506(c).  Under these circumstances, the issuer can rely on the third party verification of accredited investor status without independent verification.  The SEC has stated, that an issuer may also rely on other parties to complete the verification of accredited- investor status, if the third party takes reasonable steps to verify that the investors are accredited investors, and  has determined that such purchasers are, in fact, accredited investors, and the issuer has a reasonable basis to rely upon such verification.

More information about third party verification providers can be found here.

Companies should check the state blue sky filing requirements in each state where potential investors reside to ensure compliance with each state’s requirements.

Companies should hire an experienced crowdfunding lawyer to develop compliance procedures prior to their offering that address due diligence requests from investors, advertisements, search engine optimization and communications with potential investors.  Preparation for a successful offering can be done by developing closing procedures that address the execution of subscription materials, and delivery and accounting of investor funds and securities.

For more information about crowdfunding please contact Brenda Hamilton, securities attorney at [email protected].  This information is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship.  Please note that the prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Crowdfunding Lawyer
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855