May 18, 2012
In regards to the general advertising change in Rule 506 offerings and the provision that only accredited investors may purchase under such exemption, and the verification of the accredited status of those investors, I feel that the following should be considered:
1. Traditionally, accredited investors have self-certified through the "check a box" procedure on a form submitted to the issuer. This practice should continue and the issuer should be able to reasonably believe that the self-certification is valid.
2. If the requirement for the issuer to verify the accredited status of the investor is changed from "reasonably believes" to a stricter verification process, I propose that the requirement be placed on the investor to have a third party, e.g. accountant, attorney, tax preparer, bank representative, etc., having knowledge of the financial status of the investor and attesting to that knowledge, be a signing party to the form used in the self-certification process. This would give the issuer a more substantive source for relying on the investors statement without creating additional burden upon the issuer to validate the statements made by the investor as to suitability for the investment for protection under the exemption.
In regards to Crowdfunding provision of the JOBS act:
1. Unless a potential business falls within a narrow sector (e.g. bio-tech, high-tech, etc.), or the organizers of the venture have sufficient capital to afford the costs associated with a small offering, most new businesses do not receive the funding necessary for the successful startup of the business.
2. Crowdfunding has proven to be a source for funding projects that those who fund the projects do so out of an affinity for the project and/or author of the project.
3. More new jobs are created via entrepreneurial efforts than through other sources.
4. New business ideas could gain the necessary capital to move from concept to prototype, prototype to production, and production to growth, if there are new avenues available to the organizers for raising capital that are currently outside of the traditional methods of capitalization of the business.
5. The marriage of Crowdfunding with businesses raising capital does need some regulation. However, by only making such funding available from accredited investors defeats the purpose of Crowdfunding and does not service the actual needs of the business.
6. By providing a process for registering the offer, such as in Regulation D, and providing a method of regulation of portals to act as intermediaries, the use of Crowdfunding can become an important arena for new business startup funding as well as funding for expansion and other areas of business funding.
7. By providing a method for potential investors to register themselves with the portal as an investor and provide a self-certification process to determine to what level they may invest, would help protect the investor from engaging in a financially risky venture. This would also allow the issuer a method to insure that those who purchase the security fall within the guidelines as they may be written.
8. I propose that there be multiple levels of investor, not only the currently defined two (accredited/non-accredited). A tier system that would allow those that have a track record of investing and those that have higher income levels, but not at the level of accredited investor, could be designed to allow for a more flexible system than the current two tier system. This would allow certain groups or classes of investors to invest more than those that are not experienced nor have capital resources to risk.