Crowdcheck Blog

We’ve heard from some of our clients that potential investors are getting spooked by the crypto winter and the FTX meltdown. Yes, you can invest in crypto online, just like you can invest in online exempt public offerings under Regulations A, CF and D. But that’s pretty much where the similarity ends. There are a number of differences between the crypto world and online exempt securities offerings. These include the types of investments offered. Crypto comprises purely digital assets, which may be in various stages of development, may or may not work, may or may not have value and in some cases may vanish overnight if investors lose confidence in them. The…

It’s 1-SA filing season again for Regulation A filers, and time to make some observations about the consequences of not filing. We have encountered more than three companies in the last three months that have not filed all (or in one case, any) of their ongoing filings, and yet have requalified their offerings or qualified new offerings. This is a problem. Let’s start with the ongoing reporting requirements. Assuming a Reg A filer has a December year-end, under Rule 257 it has to file its annual Form 1-K by April 30 and its semi-annual 1-SA by September 28 (subject to adjustments for leap years and weekends). It may also need to file “current” reports on Form 1…

So May 2 marked the due date for most companies in the crowdfunding world to file their annual reports on Form 1-K or C-AR. And many companies didn’t. Do I need to remind you that in order to make an offering under either Reg A or Reg CF, if you have made offerings under that exemption before, you have to have made ALL ongoing reports required by the exemption in the previous two years before relying on that exemption again? Apparently I do. Now for some companies, it’s possible to get back into compliance just by filing a compliant report (or reports plural, if you are missing more than one), even if it’s late. We’ve discussed in detail what companies are…

One of the great benefits to issuers under the SEC’s rules for offerings under Tier 2 of Regulation A, effectively created by the JOBS Act, is the preemption of state requirements for registration of the offer and sale of securities. Known as “Blue Sky Laws”, these state specific rules added considerable cost to qualifying an offering under Regulation A. The SEC determined it was appropriate to preempt state qualification rules by deeming securities offered and sold under Tier 2 of Regulation A to be sold to “qualified purchasers” under Section 18 of the Securities Act. Under Section 18, states are still given the authority to require filing fees and notice…

When do companies need to tell investors about criminal proceedings that allege their officers and directors have engaged in fraud?  According to some state regulators, it may be sooner than companies expect.   In a recent settlement, an issuer was found liable for failing to disclose in its Reg A offering the ongoing criminal proceeding involving allegations of fraudulent behavior against their CEO even though there had not been a conviction. Further, the criminal proceedings at issue were outside the United States.   The Form 1-A, which sets forth the SEC’s disclosure requirements for Reg A offerings, requires disclosure of any legal proceeding material to…

If you work with us, you will hear it many times that we strongly advise against financial projections …  as they can get you in trouble. However, companies always seem to want to include projections that start from zero, and grow exponentially. This type of financial projection that is untethered to reality is a primary driver of what will cause investors to sue for being misled because investors expect companies to believe that those projected results are attainable.   One such commonly used financial projection is the hockey stick graph, as in the example below:   CrowdCheck Law’s projected legal revenues. (FYI, the size of the entire global legal market is…

The Theranos jury’s fraud convictions of Elizabeth Holmes, former CEO and founder of the now defunct Theranos, Inc., should give pause to startups seeking to build their reputation by touting their relationships with other companies.  In the press to find financing, it can be tempting to use the logos of other companies, especially those that command market attention, to persuade investors to come on board.  In the case of Theranos, Ms. Holmes placed the logos of Pfizer and Schering-Plough on Theranos reports without receiving permission from those companies.  In her testimony, Ms. Holmes stated that she did not mean to deceive investors or business partners. …

Well, I thought I’d better blog something before people think we’ve vanished. We’ve just been too busy. But recently something happened that tied together two previous blog posts. Trolls have become an increasing problem in the online space. The whole point of the crowdfunding regs is to give voice to the crowd, to enable retail investors to make informed investment decisions by learning from each other’s comments and questions and the issuers’ responses. They can’t do that when trolls interfere with the communication channels, posting the same content and saying the same things again and again, especially when they do so under several different identities. “…

The SEC today decided to make a statement against companies considering using Regulation CF for fraudulent offerings, and funding portals that facilitate the fraud. A copy of the complaint can be found here, https://www.sec.gov/news/press-release/2021-182. On September 20, 2021, the SEC filed in federal court a complaint against sponsors of a marijuana real estate venture, and the TruCrowd funding portal, and its owner. The complaint alleges the sponsors of the issuer hid the existence of a person who acted in the role of an officer throughout the offering process because that person had a criminal record. The complaint also alleges that funds were used in a…

Startup investors all hope for a great “exit.” Most startups, of course, will never get to that point, but for the successful ones, the principal ways that investors get repaid for their faith in a high-growth early stage company is an eventual IPO, hopefully at a price much higher than the price they paid, or through the acquisition of the startup by another company. It can take a very, very long time for a startup to get to the point of an IPO. We aren’t aware of a company crowdfunded under Regulation CF having done an IPO yet. Mergers and acquisitions are a much more likely option for an exit for a company that raised funds in a Regulation CF offering. We’ve…