State securities regulators ready rules for crowd-funding opportunity for entrepreneurs

Washington State securities regulators intend to make sure that entrepreneurs anxiously awaiting adoption of the rules that will permit them to begin raising capital under new state crowd-funding law won't face any of the frustrations and disappointments that have followed passage of similar legislation at the federal level.

The bill under which entrepreneurs can raise funds up to $1 million a year in small amounts from in-state investors passed the Legislature, was signed by the governor last month and goes into effect June 12. But officials of the State Department of Financial Institutions have until October 1 to put in place the rules and the process under which the fund-raising can get under way.

Joe Wallin

In an effort to ensure that everything is done on schedule, Scott Jarvis, director of the Department of Financial Institutions, says even before the legislation goes into effect, his agency has begun the planning process for how the rulemaking will unfold between now and October.

Washington is now one of a handful of states where lawmakers have decided the promise of a new source of fundraising for entrepreneurs won't likely come about in any meaningful way at the federal level and thus have decided to act locally.

It's becoming increasingly likely that what Congress, with an election-year flourish two years ago, passed as the JOBS Act to open the door for entrepreneurs to fund their start-up businesses by attracting average investors on the internet will remain a promise unfilled.

It's now been almost two years since Congress passed the bill and gave the Securities and Exchange Commission 180 days to put together the rules for how entrepreneurs could fund their start-up companies via the internet to allow selling equity to large numbersof average investors.

Well, entrepreneurs around the country are still waiting for those rules to emerge from the SEC, which must pass rules to implement the legislation officially titled Jumpstart Our Business Startups.

And there is a growing sense that the details of compliance, once the SEC finally acts, will be so onerous on entrepreneurs that the costs of starting to raise capital on the Internet will deter many if not most would-be entrepreneurs.

One of those cost factors imposed under the federal act involves a requirement that entrepreneurs must use what are called "portals" basically a new kind of SEC-regulated website with unique responsibilities to oversee the entrepreneurial fund-raising activities, investor risk and monitor money raised.

Under the state legislation, economic development organizations and ports will serve as portals for the entrepreneurs at the outset, with the legislation's second deadline being methods of qualifying other portals by next April 1.

But unlike with the federal legislation, Washington state entrepreneurs raising funds won't be required to use a portal.

The bill allows eligible businesses to raise up to $1 million during any 12-month period and repeat the process in subsequent 12-month periods with accredited and non-accredited investors allowed to participate, up to the investment caps imposed by the federal legislation.

Joe Wallin, the Davis Wright law firm attorney who had the leading-edge role in bringing about the state crowd-funding statute, sees it as "potentially a good avenue for companies to raise capital."

Wallin, who wrote the first draft suggestion the legislation and included it in a blog post later testified on its importance in making the state more business friendly.

He suggests, as others have, that having a crowd-funding law in place to allow entrepreneurs who are residents of this state to sell small amount of equity to investors who must also be Washington residents could attract entrepreneurs from other states to move to Washington.

"States are vying to get businesses to move to their states to bring jobs and entrepreneurs who build businesses through crowd-funding will eventually also create jobs," he adds.

Rep. Cyrus Habib, the King County lawmaker who sponsored the bill, said "we're putting our state in a place to attract entrepreneurs, and to capitalize on their energy and brainpower. And ordinary people get to buy a piece of the action."

Since the Internet has been viewed as the vehicle of choice by entrepreneurs and crowd-funding advocates to reach large numbers of average investors most effectively, the fact that only Washington residents are eligible to invest in the Washington state-based companies creates an outreach challenge for the startups.

Wallin says "companies will have to be very careful" how they conduct their equity offerings, using either portals that only allow investors of a particular state to view offerings, or "work connection to connection in a manner that doesn't involve generalsolicitation to non-residents."

Part of the role of portals will be to ensure that a firm's annual fundraising via crowd funding doesn't exceed the legal $1million restriction.

If there's any doubt that optimism is the byproduct of entrepreneurism, witness the fact that venture capitalists and other investors are rushing into the creation and development of the companies whose business is serving as portals and helping provide services to those who will be hoping to raise equity under the eventually implemented federal act.

The VC's have poured millions of dollars this year into companies like Indigogo, Crowdbit and Teespring and other such crowd-funding support companies.

Wallin, the Davis Wright attorney, think portals will attract funding from experienced investors. "They are Potential great investments," he said. 

Unlike most rule-making hearings by state agencies, the crowd-funding hearings may draw substantial and boisterous gatherings.

As DFI Director Jarvis put it, "this is a crowd of young and enthusiastic supporters who have little knowledge of the process of rulemaking."

Part of the challenge for the agency as the rulemaking moves ahead is that some entrepreneurs may fail to understand that, as Securities Administrator Bill Beatty emphasized, "our mission is a dual mission: to protect investors and promote small business capital formation."