Small Business Lawyer Office Reports on Capital Raising Policy Recommendations – Corporate / Commercial Law

In a report to Congress, the SEC Advocate’s Office for Small Business Capital Formation (the “Advocate”) summarized policy recommendations made by attendees at the 40th Annual SEC Small Business Forum (see previous coverage here).

Among the recommendations, the participants proposed:

• support equitable access to capital for under-represented entrepreneurs;
• create a micro-offer exemption within the framework of the offered offer;
• the removal of the GAAP financial statement requirement from Crowdfunding regulations for issuers seeking to raise a small amount;
• clarify when a digital asset is security;
• expanding the definition of “accredited investor” under Regulation D (“Rules Governing the Limited Offer and Sale of Securities Without Registration under the Securities Act of 1933”);
• increase the thresholds for ICA section 3 (c) (1) funds, including the number of authorized investors and the $ 10 million cap for qualifying venture capital funds;
• increasing the thresholds in the definitions of “small company reporting” and “fast-filing”;
• increase the transparency of short sales and dark pools; and
• provide liability exemptions for environmental, social and governance (or “ESG”) disclosures.

Remark

The SEC should completely eliminate the limit on the number of investors in ICA Section 3 (c) (1) funds. The size limit simply serves to prevent small investors from gaining access to Article 3 (c) (7) funds in which institutional investors typically invest. The result is not to protect retail investors; this prevents them from grafting on the collateral protections they would receive if they could rely on the due diligence and other oversight provided by large investors.

Primary sources

1. SEC Press Release: SEC Presents Report to Congress Containing Recommendations from 40th Annual Small Business Forum
2. SEC Report: 40th Annual Small Business Forum

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