Crowdfunding: Challenges and Opportunities for Indies

David B. HoppeGamma Law, San Francisco

Estimated $5.1 billion to be raised worldwide through crowdfunding in 2013 – massolution, http://research.crowdsourcing.org/2013cf-crowdfunding-industry-report.

Source: http://www.kickstarter.com/help/stats?ref=footer

Kickstarter Successful Projects (Selected) 

Source: http://www.kickstarter.com/help/stats?ref=footer

Kickstarter Unsuccessful Project Statistics (Selected)

67,266backers$3,845,170pledged of $900,000 goal 

Mighty No. 9, Kickstarter, August-September 2013

Introduction

Source: Kickstarter; statistics through June 12, 2014. 

Games on Kickstarter • 10,371 campaigns.• 35.6% success rate.• 72% raise $10,000 or less.

Introduction

Source: Kickstarter; statistics through June 12, 2014. 

Other Projects on Kickstarter 

Music •30,106 campaigns.•55.1% success rate.•84.6% raise $10,000 or less.

Introduction

Source: Kickstarter; statistics through June 12, 2014. 

Other Projects on Kickstarter 

Film & Video 

• 36,446 campaigns.• 40.3% success rate.• 69.7% raise $10,000 or less.

Introduction

The Banner Saga, StoicKickstarterSource: http://www.kickstarter.com/projects/stoic/the-banner-saga

Reward Crowdfunding vs. Equity Crowdfunding

Introduction

Reward Crowdfunding • Tax implications.• No requirement of US entity.*• Segregate funds; preferably establish separate company.• Basically unregulated.

* - (But may not be able to run campaigns on some crowdfunding sites from all countries.)

Introduction

Equity Crowdfunding • Contributors become investors.• Stockholders in your company?• Or holders of equity interest in particular projects?

Equity Crowdfunding in Europe

Europe: Rapid Growth of Equity Crowdfunding

European securities regulation has traditionally been lighter than the US.

But:

• Fragmented regulatory regimes.• Uncertainty about what’s permissible.• Currently largely limited to national markets.

US Regulation of Crowdfunding

The CROWDFUND Act:“Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act of 2012,” signed April 5, 2012

US Regulationof Crowdfunding

US Regulation of Crowdfunding

The New Crowdfunding Exemption “For the first time, ordinary Americans will be able to go online and invest in entrepreneurs that they believe in.” 

– President Obama, April 2012 signing ceremony.  “The thing about crowdfunding is that it brings together unsophisticated issuers with unsophisticated investors … what could possibly go wrong?” – Barbara Roper, Consumer Federation of America. 

US Regulation of Crowdfunding

The New US Crowdfunding Exemption • Annual dollar limit on sales by companies.• Annual dollar limit on purchases by investors.• Must be through crowdfunding website registered with SEC.• Required disclosure by company.• Audited financials required for offerings >$500,000.• Limited ongoing reporting.• Must be US company.

US Regulation of Crowdfunding

Size Limitations • Annual limit per company: $1 million.*• Annual limit per investor:

o Annual income or net worth less than $100K:5% of income / net worth or $2000, whichever greater.

o Annual income or net worth $100K or more: 10% of income / net worth, with cap of $100K.

Burden on crowdfunding websites to verify.

* - 66 Kickstarter campaigns have raised $1 million or more.

US Regulation of Crowdfunding

Financials Requirement is based on company’s total campaign targets for year: • If less than $100K, must provide tax returns and financials certified

by CEO.• If $100K to $500K, audited financials not required; but financials

must be “reviewed” by CPA.• If over $500K, financials must be audited.

Indiegogo: “a massive dealbreaker”.

US Regulation of Crowdfunding

Exception: Private Placements Amount of capital raised in US private markets compared to IPOs: 

4x Estimated annual size:

$1.2 trillion.

US Regulation of Crowdfunding

Exception: Private Placements • Accredited investors: net worth of $1 million; or income of $200K

($300K with spouse).*• Up to 35 non-accredited investors.• Annual limit of $5 million; unless any non-accredited investors are

“sophisticated.”• Private placement memorandum for non-accredited investors.• Audited financials.

* - Compare to UK: “complete a short survey that assesses whether you fully understand the high-risk nature of investing….”

US Regulation of Crowdfunding

Crowdfunding Portals for Accredited Investors

US Regulation of Crowdfunding

Crowdfunding Portals for Accredited Investors No:

•Limits on offering size (in most cases).•Limits on per-investor purchases.•All-or-nothing campaign requirement.•Ongoing reporting requirements.•Requirement of US entity.

 Also, reduced risk of civil/criminal liability. 

 

 

Will the amount of new money generated by equity crowdfunding and accessible to small/medium-sized companies be enough to make all this worthwhile?