The Regulation of Crowdfunding in the United States
The regulation of crowdfunding in the United States is multifaceted. Donation- and reward-based crowdfunding are essentially unregulated, subject only to the prohibitions on fraud and false advertising that apply to all commercial transactions. But crowdinvesting and most forms of crowdlending must comply with the registration and prospectus requirements of the Securities Act of 1933, unless an exemption is available.
Four different exemptions are available. Two of these, Rules 506(b) and 506(c), allow sales to wealthy or sophisticated investors with little additional regulation. Section 4(a)(6) of the Securities Act and its implementing regulation, Regulation Crowdfunding, allow sales to the general public, but at a high regulatory cost. Section 4(a)(6) and Regulation Crowdfunding heavily regulate all three participants in the crowdfunding process—issuers, intermediaries, and investors—and impose significant limits on the structure of offerings. Finally, many US states have adopted state crowdfunding exemptions that are coordinated with the federal intrastate offering exemption. These state exemptions are of limited usefulness because the issuer and all investors must be located in a single state.
- Bradford, C. Steven. 2001. Securities Regulation and Small Business: Rule 504 and the Case for an Unconditional Exemption. The Journal of Small and Emerging Business Law 5: 1–47.Google Scholar
- ———. 2012a. Crowdfunding and the Federal Securities Laws. Columbia Business Law Review, 1–150.Google Scholar
- ———. 2012b. The New Federal Crowdfunding Exemption: Promise Unfulfilled. Securities Regulation Law Journal 40: 195–250.Google Scholar
- ———. 2015. Shooting the Messenger: The Liability of Crowdfunding Intermediaries for the Fraud of Others. University of Cincinnati Law Review 83: 371–410.Google Scholar
- Campbell, Rutheford B., Jr. 1995. Resales of Securities under the Securities Act of 1933. Washington & Lee Law Review 52: 1331–1384.Google Scholar
- Cohn, Stuart R., and Gregory C. Yadley. 2007. Capital Offense: The SEC’s Continuing Failure to Address Small Business Financing Concerns. N.Y.U. Journal of Law and Business 4: 1–87.Google Scholar
- Hazen, Thomas Lee. 2016. Treatise on the Law of Securities Regulation. 7th ed. St. Paul, Minn: Thomson Reuters.Google Scholar
- Ivanov, Vlad, and Scott Bauguess. 2012. Capital Raising in the U.S.: The Significance of Unregistered Offerings Using the Regulation D Exemption. Securities and Exchange Commission (SEC). https://www.sec.gov/info/smallbus/acsec/acsec103111_analysis-reg-d-offering.pdf. Last modified Feb 2012.
- Long, Joseph C. 2015. Blue Sky Law. St. Paul, Minn.: Thomson/West Group.Google Scholar
- Palmiter, Alan R. 2012. Pricing Disclosure: Crowdfunding’s Curious Conundrum. Ohio State Entrepreneurial Business Law Journal 7: 373–427.Google Scholar
- Pei, Matthew A. 2014. Intrastate Crowdfunding. Columbia Business Law Review: 854–898.Google Scholar
- Prifti, William M. 2010. Securities: Public and Private Offerings. 2nd ed. Eagan, Minn.: Thomson/West Group.Google Scholar
- Securities and Exchange Commission (SEC). 1996. Report of the Advisory Committee on the Capital Formation and Regulatory Processes. http://www.sec.gov/news/studies/capform.htm. Last modified 24 July 1996.
- ———. 2000. Use of Electronic Media. Securities Act Release No. 7856, Federal Register 65: 25843–25855.Google Scholar
- ———. 2013. Crowdfunding. Securities Act Release No. 9470, Federal Register 78: 66428–66602.Google Scholar
- ———. 2015a. Compliance and Disclosure Interpretations: Securities Act Rules. www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm. Last modified 8 Dec 2016.
- ———. 2015b. Crowdfunding. Securities Act Release No. 9974, Federal Register 80: 71388–71615.Google Scholar
- ———. 2015c. Report on the Review of the Definition of ‘Accredited Investor’. https://www.sec.gov/corpfin/reportspubs/special-studies/review-definition-of-accredited-investor-12-18-2015.pdf. Last modified 18 Dec 2015.
- ———. 2016. Exemptions to Facilitate Intrastate and Regional Securities Offerings. Securities Act Release No. 10238. https://www.sec.gov/rules/final/2016/33-10238.pdf. Last modified 26 Oct.
- Sjostrom, William K., Jr. 2001. Going Public through an Internet Direct Public Offering: A Sensible Alternative for Small Companies? Florida Law Review 53: 529–594.Google Scholar
- ———. 2004. Relaxing the Ban: It’s Time to Allow General Solicitation and Advertising in Exempt Offerings. Florida State University Law Review 32: 1–50.Google Scholar
- Surowiecki, James. 2004. The Wisdom of Crowds: Why the Many Are Smarter than the Few and How Collective Wisdom Shapes Business, Economics, Societies, and Nations. New York: Anchor Books.Google Scholar
- U.S. Government Accountability Office. 2000. Small Business Efforts to Facilitate Equity Capital.Washington, D.C.: U.S. Government Printing Office.Google Scholar