A recent report on the state of Regulation Crowdfunding published by a major crowdfunding advisory firm is cause for both celebration and renewed reform efforts. The $100 million aggregate funding milestone and the prorated year over year growth data indicate that the market, while still in its infancy, is growing at a nice pace. Nevertheless, a closer look at the data suggests that Regulation Crowdfunding in its current framework is not reaching its potential and remains in serious need of reform.
The 2017 State of Regulation Crowdfunding, published by crowdfunding advisory firm Crowdfund Capital Advisors, contains several helpful points of data and analysis. The data in the report were retrieved from the various forms that are required to be filed by issuers in Regulation CF equity crowdfunding transactions under Title III of the JOBS Act, which are publicly available on the SEC’s EDGAR website. These include offering statements on Form C, amendments to those statements on Form C/A, offering progress updates on Form C-U and annual reports on Form C-AR.
The report could be downloaded for free here. Some of the key findings are as follows:
- The number of unique offerings increased 267% from 178 in 2016 to 481 in 2017.
- Proceeds increased 178% from $27.6 million in 2016 to $49.2 million in 2017.
- As of today, there are $100,072,759 in aggregate capital commitments.
- The number of successful offerings increased 202% from 99 in 2016 to 200 in 2017
- The total number of investors in Reg CF investments increased 158% from 28,180 in 2016 to 44,433 in 2017.
The foregoing data need to be put into some context. First, Reg CF only went live on May 16, 2016, and so the year against which 2017 is compared is only slightly over one-half of a calendar year; data from that year should be annualized to reflect the fact that deals were only happening for approximately 65% of the year. Also, on the advice of funding portals, issuers are setting extremely low target offering amounts, in some cases as low as $10,700 (1% of the maximum allowed in any rolling 12-month period). Accordingly, the above data on successful offerings may need to be viewed somewhat skeptically to the extent “successful offering” is determined based on whether or not an issuer exceeded its own stated targeted offering amount.
The report also offers the following points of analysis:
- The market is growing at a rapid pace.
- The pace of capital into funded offerings appears to be steady without showing signs of abnormal activity or irrational investor behavior.
- The rapid increase in the number of offerings and investors proves that there is appetite for Reg CF from both issuers and investors.
- Given the lack of irregularities or fraud, Reg CF (and the structure under which it provides for transparency) should be advocated by policy makers and government organizations.
The report does not offer data to support the premise of that last point, i.e., that there exists a lack of irregularities or fraud.
But We Still Need Further Reform
While the $100 million milestone should be cheered, there is objective reason to believe that Reg CF is grossly underperforming as a capital raising pathway and failing to meet its potential. It was intended to democratize startup investment, to enable hundreds of millions of people who were effectively shut out of private offerings because of their lack of accredited investor status to invest in these deals for the first time. It’s believed that over 90% of the U.S. population would fall into that category and that there’s an estimated $30 trillion socked away in their savings accounts. If only 1% of that were to be reallocated to Reg CF deals, we’d be seeing an annual market of $300 billion dollars, which would dwarf the $72 billion in U.S. VC investment in 2017.
Which leads me to the need for further reform. Much has already been said about the low $1.07 million cap on issuers. Although the cap should certainly be raised to balance out the amount raised with the disclosure, filing and other burdensome requirements as well as to make Reg CF more competitive with other available pathways, the reality is that most Reg CF offerings are not even reaching the existing cap. That suggests that there must be other impediments in the rules that should be addressed to help companies raise permissible amounts.
Chief among these impediments in my view is the exclusion of investment vehicles from Reg CF. Many accredited investor crowdfunding platforms like AngeList and OurCrowd operate on an investment fund model, whereby they recruit investors to invest in a special purpose vehicle whose only purpose is to invest in the operating company. Essentially, a lead investor validates a company’s valuation, strategy and investment worthiness. Traditionally, angel investors have operated in groups and often follow a lead investor, a model which puts all investors on a level playing field. The additional benefit to the portfolio company from this model is that the company ends up with only one additional investor on its cap table, instead of the hundreds that result under current rules. I suspect that many companies are shying away from Reg CF because of this reason alone.
Reg CF should also be reformed to raise the investment caps for investors. Currently, investors are capped based on their income or net worth, with a hard cap irrespective of net worth or income. At a minimum, there should be no hard cap for accredited investors. Makes no sense that Mark Zuckerberg be capped at $107,000.
Finally, under current rules, any Reg CF funded company that crosses a $25 million asset threshold would be required to register with the SER under the Securities Exchange Act and become an SEC reporting company. This would have the potential to create a perverse disincentive for a company not to grow, and seems inconsistent with the spirit of Reg CF, which for the first time allows companies to offer securities to the public without registering with the SEC. The asset threshold triggering Exchange Act registration should either be raised or eliminated.
Although Reg CF is still in its infancy and the data in the report could be read to indicate steady growth in a seemingly healthy emerging market, there is also reason to believe that the market has not even begun to tap its potential, a potential that may never be realized if perceived impediments are not mitigated or removed.