Crowdfunding is poised to become a $5 billion industry in 2013--but it's still completely unregulated. That's because the SEC is treading water over the issue. Here's why.
A massive, 93-page study of the crowdfunding industry released earlier this week shows some promising figurers for the future of crowdfunding: In 2012, worldwide crowdfunding volume reached $2.7 billion. There were more than one million campaigns. By the end of 2013, the researchers concluded the crowdfunding industry could grow to $5.1 billion.
Released by Massolution, a Los-Angeles based business that does crowd-sourcing for enterprises, the research was quite bullish about the future of the crowdfunding model: "This indicates a maturing of the market, especially as the crowdfunding models are picking up traction among start-ups."
There's one big caveat, of course. In the United States, equity crowdfunding is still unregulated, and thus, illegal.
Since President Obama signed the JOBS Act legislation last April, the U.S. Securities and Exchange Commission was given a 90-day deadline to create the guidelines by which founders could solicit funds, and by which accredited investors could be verified online. (For more on Title II and general solicitation, check out some earlier pieces on the subject.) As we reported last summer, the SEC missed its July dealine. Since then, the agency has largely stalled.
On another piece of the JOBS Act legislation, Title III (which would regulate investment crowdfunding), the SEC opened up a comment period to allow the public to offer counsel on how the regulations might be created. More than 180 people have submitted.
What's been happening since then?
In late March, the SEC issued "no-action" letters to two start-ups dealing in online investing. For the uninitiated, "no-action" letters are basically what they sound like: that while the SEC doesn't specifically endorse the activity, it's not planning on pursuing legal action, either.
However, those no-action letters might not actually mean too much, at least in regards to the JOBS Act and Title III, despite what you may have heard.
One of the start-ups to receive a no-action letter was FundersClub, a Y Combinator-incubated company that fashions itself as the world's first online venture capital firm--but doesn't bill itself as a crowdfunding site.
Alex Mittal, FundersClub's founder and CEO, said quite blunty that "People are inappropriately calling [the letters] an endorsement of crowdfunding." According to Mittal, FundersClub isn't structured as a broker-dealer, nor does it intend to allow unaccredited investors to join the site, a major part of Title III.
In fact, FundersClub is pretty much like any other VC firm, albeit with one other major distinction: it doesn't take a 2 percent management fee of investment funds.
AngelList, which also received a no-action letter, doesn't act a broker-dealer, either: it partners with SecondMarket for that function.
"We didn't really announce this since a lot of it seems like behind-the-scenes inside baseball," Naval Ravikant, AngelList's CEO, told Danielle Morrill. "It lets us know the legal boundaries of what's possible in the space and will inform our future products, but right now we're happy with the SecondMarket partnership--SM vets investors for sophistication, companies for background, and provides Broker-Dealer level protection and compliance."
Neither FundersClub nor AngelList rely on initiatives mentioned under Title III of the JOBS Act, so it's wrong to think that SEC was making a substantive ruling on the matter with these letters. But some consider it at least a step in the right direction--or, as a model by which crowdfunding sites can the cue.
"The SEC is saying, look, there's a wild west happening, and while we're concerned, there are good practices we can encourage," says William Carleton, a start-up lawyer based in Seattle who has followed the no-action letters.
But the overtime clock is ticking, and entrepreneurs looking to raise capital online are growing anxious. On Monday, David Blass, the chief counsel of the SEC, met with entrepreneurs to discuss the agency's timeline.
"It just is not possible for me to say a date in which it will or will not be up and running," Blass said. "I don't think anybody who gives you a prediction on timing really knows what they're talking about, unless they've been through the process and knows what goes into making an SEC rule final."
For some entrepreneurs, that answer just isn't good enough. Gregory Simon, the chief executive of large-scale crowdfunding site Poliwogg, told the Washington Post: "There's another kind of fraud, and that's when Congress and the president pass and sign a law, and thousands of companies organize according to the principles in that law... but academics and people in consumer groups who disagree with the law make it their mission to prevent the law from going into effect."