监管收紧：证券交易委员会提议将众筹门户网站视作“发行人”，这意味着这些门户网站要对在该网站融资的企业家负责。如果企业家融资被证实诈骗，那么该门户网站要为此负责。同时，门户网站不能够提出“投资建议”。也就是说，门户网站要为投资损失负责但却不能提出任何投资建议。“试行规则让融资门户网站处境艰难” Kiran Lingam在对证券交易委员会提议的信件中说道。Kiran Lingam是Seed Invest的总法律顾问， Seed Invest 就是一家股权众筹交易平台，不过目前只对授信投资者开放。
最终，只有少部分门户网站会在如此严格的监管下存活下来：小企业和企业家理事会，一个拥有10万多名成员的团体在寄给证券交易委员会的信件中提到，一系列监管会导致门户网站数量十分有限。“在现有试行规则下，一系列监管和法律责任方面的压力使我们很难期待出现状态活跃的众筹门户，这意味着，发行人机会更少，且费用更高。当试行监管条例能够使门户网站的职责和自由裁量权清晰化时，会为网站的创新、竞争以及问责制留出余地，”小企业和企业家理事会的董事长兼CEO Karen Kerrigan在他寄给证券交易委员会的信中这样说道。门户网站减少对这个行业具有负面影响。他又说道：“有更多可供选择的融资门户网站对投资者和青睐使用该平台企业家们都有益。”
“在证券交易委员会试行规则公布后，门户网站应需要采取积极的尽职调查，以防有投资者因实质性错误描述或遗漏而投诉发行人。融资门户网站受条例三限制，只能提供低于100万美元的投资产品，而对项目大量监测的成本相对于这样小规模的产品来说是很高的，”John Hamiton如是说，John是位于华盛顿的社区发展中心City First Enterprise的董事长。他又说道：“这些尽职调查带来的成本给门户网站带来了挑战，因为发布的项目入不敷出，这样会减少潜在投资机会，也会削减众筹带来的资金，反过来又会降低通过立法增加就业机会的可能。”
那么，这带来了什么？一些对于这些门户网站的监管是需要被取消的。正如上文所述，门户网站正处在进退两难的矛盾境地之中。House Small Business Committee的主席及代表 Sam Graves（R. Mo.）在给证券交易委员会的信件中这样说道：“为了创建一个对小企业可用的众筹模型，同时又对投资者给予充分的保护达到一个合适的均衡的状态，委员会应该将试行规则中的一些监管取消，或允许它们协助产品的发布。否则，任何合理的业务能否在网络门户网站上发布将不太可能成为掷硬币的随机行为。如果没有这些门户网站，就不存在众筹，那么就直接违反了国会制定的创业企业融资法案中第三条。”
Who is responsible in the case that an investor loses his or her money to a fraudster in equity crowdfunding? That is the question that is at the root of much of the debate over how to regulate this new financial tool.
On the last day that public comments for proposed regulation for equity crowdfunding were accepted by the Securities and Exchange Commission, almost fifty letters were submitted with recommendations on how to change the rules.
The comment letters came from a wide variety of sources, from small-business advocacy groups to equity-crowdfunding portals to various members of the legal, regulating community to professional crowdfunding trade organizations. But many of the letters brought up one common concern: that the websites administering equity crowdfunding (or the “portals”) will be saddled with so much responsibility, they won’t be able to effectively function.
The SEC, which was assigned to write rules to regulate this newly legalized equity crowdfunding, released a preliminary set of rules on Oct. 23. That initiated a 90-day comment period which ended on Monday of this week. Regulatory issues brought up earlier in the comment period included appropriate investor caps, how an investor’s wealth ought to be determined and calculated, and the appropriate amounts of financial disclosure paperwork that ought to be required.
Here is a breakdown of the latest hot-button issue: how to regulate the portals.
The regulation squeeze: The proposed SEC rules consider crowdfunding portals “issuers,” and that means that the portals are held liable for the entrepreneurs raising money on their sites. If an entrepreneur’s campaign to raise money is fraudulent, then the portal would be held responsible. At the same time, portals are not allowed to give “investment advice.” That means portals are responsible for investors losing money, but can’t give any advice. “The proposed rules put funding portals between a rock and a hard place,” said Kiran Lingam, general counsel for Seed Invest, an equity crowdfunding platform which currently deals only with accredited investors, in a letter to the SEC.
As a result, only a few portals would survive the regulatory environment: The combination of regulatory burdens will result in a very limited pool of portals, according to letter submitted to the SEC by the Small Business and Entrepreneurship Council, an advocacy group with over 100,000 members. “The combined regulatory and liability risks are far too great under current proposed regulations to expect a vibrant funding portal marketplace. That means less choice for issuers, as well as higher costs. Fixing the proposed regulations to provide clarity when it comes to liability and discretion on the funding portal’s part will allow for innovation, competition and accountability in the portal space,” said Karen Kerrigan, president and CEO of the SBE Council in her letter to the SEC. Having fewer portals is a negative for the industry. “Greater choices of funding portals will benefit investors and the entrepreneurs who will be using these platforms,” Kerrigan says.
Kerrigan says the SEC has estimated that it could cost as much as $400,000 just to meet required regulatory hurdles to open an equity crowdfunding portal. That’s a lot of money for financial platforms whose revenue streams are built by taking a cut of relatively small investments.
“Under the SEC's proposing release, a portal would need to demonstrate affirmative ‘due diligence’ efforts as a defense to an investor suit for a material misstatement or omission by the issuer of the securities appearing on the funding portal's site. Because funding portals operating under Title III will present only small offerings of less than one million dollars, the cost to conduct an extensive review of each offering would be high relative to the small offering size,” said John Hamilton, the president of City First Enterprises, a Washington D.C.-based community development center. “These due diligence costs would make it challenging for portals to post offerings that could not support fees large enough to cover the costs, limiting the number of potential investment opportunities and shrinking the amount of capital made available through crowdfunding. This in turn would diminish the job creation sought by the legislation.”
So, what’s gives? Some of the regulatory burden has to be removed from the portals. As written, portals are in an “untenable catch-22,” said House Small Business Committee Chairman and Representative Sam Graves (R, Mo.) in a letter to the SEC. “In order to achieve the appropriate balance of creating a usable crowdfunding model for small businesses while providing adequate protections for investors, the Commission should remove the liability placed on funding portals in the proposed rules or permit them to curate offerings. Otherwise it is highly improbable that any rational business would establish a web portal in the heads-you-win, tails-I-lose environment. And without web portals, there is no crowdfunding, which directly contravenes the statutory mandate from Congress in Title III of the JOBS Act.”
How then, should investors be protected? Portals should be given the authority to reject any campaign owner they consider unfit for investing, according to Charles Sidman, president and chair of the Crowdfunding Professional Association in his letter to the SEC. While Sidman agrees that giving crowdfunding portals the authority to rank entrepreneur campaigns does constitute a level of “investment advice” that portal operators should not have, they should be allowed to reject any applicant they feel untrustworthy carte blanche, he says.