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updated 2:54 PM CDT, Jul 28, 2018

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Supporters of crowd funding for startups must await SEC rule-making process

Now that the so-called crowd-funding measure has whipped through Congress with a speed and level of bipartisan support unheard of in recent years, the effort to make it fulfill its promise of creating new companies and jobs begins. And that may prove more challenging than its passage.

 

Before any entrepreneur with a can't-fail idea rushes to the Internet in hope of attracting a crowd of investors, the Securities and Exchange Commission must first set the rules on how provisions of the law will be permitted to play out. The agency has 180 days to fulfill those duties.

 

The legislation, called the Jumpstart Our Business Startups Act (JOBS) will dramatically expand the way new companies can raise money and the reduce the oversight for smaller companies doing initial public offerings.

  

After quick congressional approval last week, President Obama, who admits he first learned about the proposal in early March, will be signing the bill Thursday.  

 

Supporters view it as a major breakthrough for funding entrepreneurial startups and thus eventually creating jobs. Critics are convinced it is a funding disaster in the making. Both will have to wait to see what the SEC comes up with.

 
 

That process that will draw its own critics as it unfolds and the fact it's now in the SEC's hands will likely create some apprehension for friends and opponents alike.

 

More than a few cynics have suggested that the bill's acronym, JOBS,  is a key reason few in Congress dared oppose it despite a lot of whispered reservations.

 

What the bill seeks to achieve is the opportunity for people (crowds) to organize via internet websites to fund companies. Using the internet to raise money is a process that's long been utilized for charitable and entertainment purposes.

 

 The crowd funding approach would open the way for people to invest as little as $500 and up to $10,000 in startups, eliminating the long-time steep financial requirement for investors, other than what's known as "friends and family" investors.

 

The kind of hype that has marked the rapid progress of this legislation through Congress is nowhere better displayed than on the website of Crowdfunding Offerings, which pitches its ability to provide an investment platform for "the crowd."

 

So here's the firm's pitch:

"Crowdfunding investing will allow start-ups and existing businesses to raise funds for their companies directly from the public who will invest small amounts of money in return for shares in the company. Americans will finally have the opportunity to invest in ways that have historically been reserved only for the wealthy. Together, America's entrepreneurs and investors will launch the next great ideas of our time!"

 

When I write occasionally about angel-investing issues, I turn to friends from Montana to California who are leaders among angel investors, with an occasional venture capitalist thrown in. Their collective insights inevitably create a better understanding of the issues, but disagreements among them frequently abound. And so it was with the crowd-funding measure.

 

The most vocal and opinionated among my angel friends on this issue is Bill Payne, who summers in the Flathead Valley of Montana and winters in the Las Vegas area. Payne, who gets to a conviction about his views because of the respect he receives from angel investors across the West and beyond, describes the bill as "a train wreck waiting to happen."

 

"Lots of investors will get scammed," Payne suggests. "Just give it a couple of years and Congress will be asking the SEC how they ever let this happen!".

 

Mike Elconin, San Diego-based leader of the major Southern California angel-investor organization Tech Coast Angels, sums up a concern that even some proponents share.

 

"The danger is that this new law will engender an expansion of boiler rooms in which slick sales people convince unsophisticated investors to put money into companies at highly inflated valuations," says Elconin. "Whether you think this is a problem for government to prevent, or a matter of buyer beware, depends on your political philosophy."

 

Dan Rosen, a respected Seattle attorney-investor and a policy director for the Angel Capital Association (ACA), is among those who supported the legislation and helped author an ACA internet post to help inform angels on the bill

 

Rosen, at the invitation of the White House, will be on hand at the bill signing Thursday. 

 

Liz Marchi, who presides over the Kalispell-based Frontier Angel Network, frames why many supporters have looked beyond those concerns at what many perceive as the underlying importance of the legislation.

 

"While there will inevitably be some hiccups in the execution of crowd-funding, I think it's a major breakthrough for early stage seed capital," she said.  "Congress has certainly allowed some risk with this bill, but it drives private capital down the food chain where it is desperately needed to seed innovation."

 

Tom Simpson, former venture-capital leader who now heads the Spokane Angel Alliance, sees the new law as "not perfect, but a step in the right direction."

 

"But I agree with Payne that the more investors a new company has, the more the likelihood for problems," he added.

 

Republican Sen. Scott Brown of Massachusetts, who conceived the measure, offers perhaps the most compelling argument in favor of it.

 

He explained that the long-time practice of people funding their new businesses by mortgaging their homes is basically no longer possible. So a new source of start-up capital was necessary, particularly in the face of the disappearing hope of bank financing.

 

My own sense is that the typical congressional supporters of the bill went through the following conversation with themselves:

 

"Job creation is so politically important today that if it costs investors a few thousand dollars each down the road, it's worth it. Somebody has to pick up the tab for creating jobs and we certainly can't. Poor people buy lottery tickets all the time taking risk far greater than investing in a start-up company. So let's get on with it."

 

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Ex-congressman Baird's ethics quest could gain national focus after 60 Minutes probe

Former Washington Congressman Brian Baird's long quest to bring a small note of integrity to the dysfunctional legislative body from which he retired a year ago has finally, with a 60 Minutes episode titled "Honest Graft," gotten a bit of national visibility for an idea whose time has long since come.

 

And it's possible that, as irate citizens across the country seek ways to express their frustration at the implications of the abject failure of the so-called supercommittee to come up with any agreement, Baird's idea may become a focal point for citizen action.

 

During the last three of his six terms representing the state's 3rd District, Democrat Baird sought unsuccessfully to pass, or even just gather support for, what he called the Stock Act. It would have barred members of Congress from doing stock transactions in areas they regulate, in essence, prohibiting their investing in a manner that those in the real world call Insider Trading.

 

For ordinary citizens, reaction to Baird's proposal would be a laughable "well, of course." But in a place whose mantra is "the rules we make for you don't apply to us," seeking to force action by the lawmakers on one small, self-imposed ethical constraint could become a rallying point for a fed-up public.

 

The thrust of the CBS segment that aired this month is that lawmakers often do make stock purchases and trades in the very fields they regulate. While ordinary citizens could be jailed for engaging in the kind of investment shenanigans that those in Congress involve themselves in, there's not even an ethical concern among lawmakers.

 

Baird may be able to gain far more visibility as a former lawmaker than he could as a member of Congress and the hope has to be that this first shot across the bow of Congress will echo down the months of the coming election year.

 

And a sure way to take this worthwhile campaign viral is to share in every possible social-media fashion 60 Minutes reporter Steve Croft's questioning of current House Speaker John Boehner and former Speaker Nancy Pelosi at their respective news conferences.

 

For viewers of the ineptitude with which both Boehner and Pelosi tried to answer Croft's questions about whether their investment practices were at least conflicts of interest, the thought that had to occur was "Who elects these people?" The answer, unfortunately, is people like us elect them. Shame on us.

 

Boehner, for example, bought a bunch of health-care-related stock during the health-care reform debate of 2009. And when Boehner's efforts to kill the so called "public option" succeeded, those stocks skyrocketed.

 

Pelosi, meanwhile, had gotten in on a series of lucrative stock Initial Public Offerings. One of those involved an enormous number of Visa shares that Pelosi purchased while she was working on legislation that would have hurt credit card companies. Two days after purchasing the stock at $44 a share, and after the bill was put on long-term hold, Pelosi's stock shot up to $64 a share.

 

Ideally, members of Congress will be pressed, in any news conference or appearance before business organizations or other groups in the coming election season, to explain why they fail to support the legislative concept for which Baird sought support in Congress.

 

Fortunately, Pelosi's struggles with the simple task of answering a question from the 60 Minutes reporter have become pervasive on YouTube, and should remain so down through election year as a backdrop to those questions posed to members of Congress seeking to stay in office. It should be watched by millions, and shared with millions more.

 

At a time when we're already dealing with "pledges" from candidates for political office, a much more logical pledge to press upon candidates than a no-taxes pact is: "Will you support the current version of Stock Act legislation in the House next year?"

 

And no candidate forsaking Congress for a run for state office should escape being forced to explain to their hoped-for statewide constituency why they lacked an interest in imposing ethical conduct at the most basic level on their fellow lawmakers and themselves by supporting Baird's efforts.

 

In this state, that would mean the question would be posed to Rep. Jay Inslee, who is running for governor. And why shouldn't he be pressed to answer that question? Hopefully, it will be posed early on in the campaign. 

 

Baird's 3rd District successor, Republican Jaime Herrera Beutler, announced earlier this month that she is signing on as a co-sponsor of a bill similar to Baird's plan, this one called "Stop Trading on Congressional Knowledge Act," sponsored by Minnesota Democrat Timothy Welz.

 

A total of 92 lawmakers have signed on as co-sponsors, including Washington Democrats Rick Larsen and Jim McDermott, though not Inslee.

 

But those wise in the way Congress works, or more accurately doesn't work, will note that the bill was assigned by House Leadership to the Subcommittee on the Constitution, about as distant from a subcommittee that has anything to do with ethics, finances or investments as they could get.

 

Howard Schultz' quixotic appeal to CEOs to halt donations to re-election campaigns of members of Congress because of their inability to progress beyond stalemate is a bit impractical because only candidates that CEO types contribute to would be impacted. Candidates supported by groups like unions and trial attorneys would actually benefit if Schultz' call drew CEO response.

 

But a call for denying donations to any member of Congress who doesn't pledge to support the specific legislation that Baird long championed might have a whole different outcome in terms of response from those seeking to remain in Congress. And since the demand for such a pledge would be coming from Democrat and Republican voters alike, it might be the seed that could grow into a renewed sense that there are things that those from all parts of the political spectrum can actually agree upon.

 

And it would thus represent a small step toward acceptability for a legislative body that badly needs to be viewed by the American public as not just trustworthy, but simply relevant.

 

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Crowd funding for start-up companies is an idea that concerns angel investors

A year ago Congress had to be talked out of doubling the amount of wealth required for individuals to invest in start-up companies. Now the lawmakers are considering the idea of removing basically all qualifications so that crowds of small investors might provide capital for entrepreneurial ventures.

 

What has stirred support among lawmakers and others for using the Internet and social media for crowd-fund investing is the challenge faced by many start-up companies to find funding in this struggling economy and the promise of the jobs such companies could create.

 

It was angel-investor groups who convinced Congress of the potential disaster for start-up companies in a provision that, for a time, was included in the so-called Dodd-Frank bill passed last year. The provision would have doubled the assets required for an investor to be "qualified."

 

It wasn't that difficult to make the obvious case to lawmakers to kill that section before a vote on the Dodd-Frank bill, since most lawmakers hadn't even been aware it was in the bill.

 

Now angel-group leaders are raising an alarm about the implications of the crowd-funding idea. But they may face a greater challenge because of the arguments of supporters, which include not just key lawmakers but the Obama Administration as well.

 

The proposal, which has already had a hearing in the House, is to allow exemption from SEC registration requirements for those trying to raise up to $5 million. As with a similar effort to tone down requirements for small public companies, the goal is to find new job-creation engines.

 

A high-visibility proponent of crowd-fund investing is an evangelical entrepreneur named Sherwood Neise of Miami, who told a Congressional subcommittee a couple of weeks ago that crowd funding could bring in as much as $500 million and lead to creation of 1.5 million new jobs over the next five years.

 
 

 

"What we are proposing is a jobs initiative that everyone should like since small businesses and entrepreneurs are the long-term engines of our economy," Neise said. "However, they need capital to grow and that has dried up since the 2008 financial meltdown."

 

Comments like that resonate with many, including the Obama Administration.

 

But not everyone likes his plan, specifically leaders of angel-investor groups, a number of whom I traded e-mails with to seek their thoughts. Angels have traditionally been the sources of capital for entrepreneur and start-up companies that need funding beyond what's called the "friends and family" initial source of money.

 

Bill Payne, viewed by many as the dean of angel investors, says "I find Neise's claims laughable," offering statistics that could cause pause if they reach the same ears as those who heard Neise's pitch.

 

Payne noted that Kauffman Foundation statistics suggest that about $100 billion from all sources, angels and VCs and friends and family, flows into start-up companies and they create 3 million new jobs a year.

 

"That computes to $33,333 per job," Payne said. "Now along comes Mr. Neise claiming that his idea would create jobs for $333 each. Are you kidding me?"

 

 


Payne, who has been an angel investor in a number of startups in the Northwest and elsewhere, added: "It's very simple from where I sit: I am not in favor of any investment vehicle that allows unaccredited investors to fund startup companies.  It is very high risk and the invested dollars are totally illiquid." 

 

Tom Simpson, who guided one of the Northwest's most successful venture-capital firms and now oversees a couple of angel-investor groups in Spokane, said it's important for "faster, cheaper and easier processes to attract investors to both young private and public companies."

 
 

 

But he said "any new regulations or processes to reduce the time and cost of raising money still need to provide prospective investors with sufficient product, market and management information, comprehensive financial data and specific risk factors to make an educated, informed investment decision."

 

Villette Nolon, chair of the Seattle-based women-angel group Seraphs and founder of the internet-based business Homesavvi.com, says that "while the intent of this idea is good, the outcomes would be disastrous."

 

"Legitimate businesses who would try this route would be extremely disappointed in the result, as truly sophisticated investors are highly unlikely to fund companies sight unseen, even at low amounts," she said. "That leaves only speculators who would be attracted by the idea of making a quick buck, and who could get very, very burned."

 

Gary Ritner, founder and heads the Seattle-based Puget Sound Venture Club, says the $10,000 proposed as maximum investment by a crowd-source investor "is too small" and the $5 million proposed maximum for the entrepreneurial startup "is too large, and not necessary."

 

But he added "we have to get capital flowing and, in concept, I like the idea of crowd funding."

 

Perhaps the major concern shared by angel investors and others is that a backlash could occur down the road if Congress hears of abuses and horror stories and decides crowd funding was a bad idea and things need to be made tighter to protect investors.

 

The concern is summed up by one who noted that "when the pendulum swings back, lawmakers always have it swing too far."

 

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