It's been nearly three years since the Jumpstart Our Business Startups (JOBS) Act passed, but 2015 may be the year the full measure of the law goes into effect.
The GOP-led Congress may act in the next few months to push through new rules governing crowdfunding. Independently, the Securities and Exchange Commission is expected to finally issue rules unlocking funding still imprisoned in the JOBS Act from 2012. Those rules, pertaining to a subsection of the law called Title III, would allow business owners to advertise directly to non-accredited, or less wealthy, investors for up to $1 million of funding each year.
This last element of the law would create a national standard allowing entrepreneurs to accept money from less-wealthy funders. The new rules would likely also render moot the patchwork of state laws enacted to serve as a stopgap for a national standard. Such a change is surely welcome news for entrepreneurs, as the state efforts can often be confusing, and funding alternatives are expensive to navigate.
The Landscape for Small Business
Currently, crowdfunding websites like CircleUp and FlashFunders operate nationally thanks to a set of exemptions authorized by Title II of the JOBS Act. Startups can only target wealthy, "accredited" investors--those who typically have more than $1 million in assets and earn more than $200,000 a year.
In the absence of a national ruling, 13 states have passed their own crowdfunding laws in the past few years, many of which let non-accredited investors do limited investing in startups.
California, for instance, boasts looser investment standards than those found nationally and has long been in the vanguard for startup financing. The state has an old exemption, for example, called 25102(n), which lets investors with a net worth of $250,000 and annual income of $100,000, or a net worth of $500,000, invest in startups. Other, newer exemptions related to the JOBS Act are pending in the state.
That's helped companies like Fireman's Brew, a Woodland Hills, California-based microbrewery, raise $2.5 million from California investors in the past couple of years. The five-employee company is seeking an additional $5 million through the California exemption, as well as by approaching investors on a state-by-state basis using yet another long-standing exemption called Regulation D. A recent update to that provision, authorized under the JOBS Act, lets startups target accredited investors themselves. (Fireman's unsuccessfully attempted to raise funds on crowdfunding platform FlashFunders this fall.)
"We are moving along with our fundraising plan as quickly as we can, because [startup] companies do not have the time to wait," says David Johnson, chief operating and chief financial officer of Fireman's Brew, which started selling its beer in 2007.
Why States Aren't Cutting It
To be sure, there are upwards of nine million accredited investors in the U.S., and companies that take funding from them aren't required to undergo audits or make as many public disclosures about operations. But it's still too limited for businesses that want to grow more quickly, Johnson says.
Nevertheless, the filing requirements for businesses taking matters into their own hands can be onerous. Attempting to raise financing across multiple states requires Johnson--and other entrepreneurs in his position--to file forms in every state where investors may show interest. And that can cost thousands of dollars for attorney and filing fees in each locale, says Johnson.
"The net-net is that crowdfunding is better suited for companies that want smaller amounts of money," Johnson adds. "We wanted between $3 million and $6 million in 90 days."
What's on Tap Nationally
For companies with bigger ambitions, help may be on the way. The newly Republican Congress may act in the next few months, says Douglas S. Ellenoff, a securities and crowdfunding expert and partner at law firm Ellenoff, Grossman and Schole in New York City. Last year, for example, Patrick McHenry (Republican, North Carolina), a member of the House Financial Services Committee, queued up legislation that includes basic protections for investors under Title III that would limit their exposure to companies while increasing audit and information requirements for startups.
That bill, or others like it, may soon move forward and spur regulatory changes as well.
"Recognizing that the political tides have definitely turned, the SEC may take the initiative and move forward on its own," says Ellenoff.