Jumpstart Our Business Startups Act

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Jumpstart Our Business Startups Act
Great Seal of the United States (obverse).svg
Acronyms (colloquial)JOBS Act
NicknamesJOBS Act
Citations
Public law Pub. L. Tooltip Public Law (United States)  112–106 (text) (PDF)
Statutes at Large 126  Stat.   306
Legislative history
  • Passed the House on March 8, 2012 (390-23)
  • Passed the Senate on March 22, 2012 (73-26) with amendment
  • House agreed to Senate amendment on March 27, 2012 (380-41)
  • Signed into law by President Barack Obama on April 5, 2012

The Jumpstart Our Business Startups Act, or JOBS Act, is a law intended to encourage funding of small businesses in the United States by easing many of the country's securities regulations. It passed with bipartisan support, and was signed into law by President Barack Obama on April 5, 2012. Title III, also known as the CROWDFUND Act, has drawn the most public attention because it creates a way for companies to use crowdfunding to issue securities, something that was not previously permitted. [1] Title II went into effect on September 23, 2013. [2] On October 30, 2015, the SEC adopted final rules allowing Title III equity crowdfunding. [3] [4] These rules went into effect on May 16, 2016; this section of the law is known as Regulation CF. Other titles of the Act had previously become effective in the years since the Act's passage.

Contents

Legislative history

President Barack Obama and First Lady Michelle Obama talk with four veterans during a stop for lunch at Anna's Pizza and Italian Kitchen in Hampton, Va., Oct. 19, 2011 during Obama's American Jobs Act Bus Tour. President Barack Obama's American Jobs Act Bus Tour - DPLA - a6427d496b25d4751670d85af1278d04.jpg
President Barack Obama and First Lady Michelle Obama talk with four veterans during a stop for lunch at Anna's Pizza and Italian Kitchen in Hampton, Va., Oct. 19, 2011 during Obama's American Jobs Act Bus Tour.

Following a decrease in small business activity in the wake of the 2008 financial crisis, Congress considered a number of solutions to help spur economic growth. In November 2011, the House passed several bills aimed at economic revitalization, [5] including Small Company Capital Formation (H.R. 1070), [6] Entrepreneur Access to Capital (H.R. 2930), [7] and Access to Capital for Job Creators (H.R. 2940). [8] The Entrepreneur Access to Capital Act was introduced by Patrick McHenry (R-NC) and revised in collaboration with Carolyn Maloney (D-NY). Informed by the Crowdfunding exemption movement and endorsed by the White House, [9] it was the first U.S. bill designed to create a regulatory exemption for crowdfunded securities. [10]

The passage of H.R. 2930 inspired the introduction of two Senate bills similarly focused on the new crowdfunding exemption: the Democratizing Access to Capital Act (S.1791, Scott Brown, R-MA), [11] and the CROWDFUND (Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure) Act (S.1970, Jeff Merkley, D-OR). [12] All three crowdfunding proposals were referred to the Senate Banking Committee, which took no action on them until March 2012.

In December 2011, Rep. Stephen Lee Fincher (R-TN) introduced into the House the Reopening American Capital Markets to Emerging Growth Companies Act (H.R. 3606), [13] to relieve companies with annual revenue of less than $1 billion from some Sarbanes-Oxley Act compliance requirements. The bill was referred to the House Financial Services Committee.

On March 1, 2012, House Majority Leader Eric Cantor introduced and placed on the House legislative calendar a new version of H.R.3606, renamed Jumpstart Our Business Startups (The JOBS Act). [14] The revised bill included the original H.R. 3606; the already-passed H.R. 1070, H.R. 2930, H.R. 2940; and two other bills that were still before the House: Private Company Flexibility and Growth (H.R. 2167), and Capital Expansion (H.R. 4088). AngelList co-founder Naval Ravikant, who spent six months lobbying for JOBS Act reforms, [15] recalls:

It ended up being a giant dog's breakfast of different bills combined together, and then some genius, probably some congressional staffer, said "How are we gonna get this thing to pass? Oh-- let's say it has something to do with jobs. Jumpstarting Our Business Startups! JOBS, JOBS!" And then, what congressperson can vote against something called the JOBS Act? It was a miracle. [15]

After some debate and revision, the new JOBS Act passed the House on March 8. [16] On March 13, the same day that the Act was placed on the Senate legislative calendar, Sen. Jeff Merkley introduced a revised version of his CROWDFUND bill, S.2190, cosponsored by Michael Bennet (D-CO), Scott Brown (R-MA), and Mary Landrieu (D-LA). The new bill was based on S.1970 but incorporated elements from S.1791, [17] upping the investment caps. It also expanded the liability section to explicitly authorize investors to sue issuers for the amount invested or for damages. [18] On March 19, during the JOBS Act's debate in the Senate, Merkley, Bennet, and Brown amended the legislation by swapping out the language from H.R.2930 and substituting in S.2190. [19]

The resulting revision passed the Senate on March 22, and after some debate passed the House on March 27. [16] The JOBS Act was signed into law at a ceremony in the White House Rose Garden on April 5, 2012. [20]

Provisions of the bill

The JOBS Act substantially changed a number of laws and regulations making it easier for companies to both go public and to raise capital privately and stay private longer. Changes include exemptions for crowdfunding, a more useful version of Regulation A, generally solicited Regulation D Rule 506 offerings, and an easier path to registration of an initial public offering (IPO) for emerging growth companies. [21]

The legislation, among many other things, extends the amount of time that certain new public companies have to begin compliance with certain requirements, including certain requirements that originated with the Sarbanes–Oxley Act, from two years to five years. [22] [23]

The primary provisions of the House bill as amended would:

The first six sections, or "Titles", of the JOBS Act are named after the original bills that each was based on, and the last section, Title VII, tells the SEC to conduct outreach regarding the new legislation to SMEs and businesses owned by women, veterans, and minorities. [29] Title III of the Act, the crowdfunding provision, has been called one of the most momentous securities exemptions enacted since the original Securities Act of 1933. [30]

Titles

The titles of the bill are:

Reception

Support

The JOBS Act had bipartisan support in Congress. [31] [32] It was supported by many in the technology and startup communities, including Google, [33] Steve Case (founder of AOL), Mitch Kapor (founder of Lotus), and many other investors and entrepreneurs. It is also supported by the National Venture Capital Association, which described the bill as modernizing regulations that were put in place almost 100 years before, by among other things facilitating use of online services to make investments in small companies. The "equity crowdfunding" provisions, also known as "securities crowdfunding", which allow companies to sell securities through open platforms, were often likened to the Kickstarter online model for funding artists and designers. [34] [35]

The JOBS Act is also a welcome development for nonprofit organizations which operate crowd funding platforms for microfinance loans, such as Kiva and Zidisha. These organizations have not obtained licenses as securities brokers due to high legal compliance costs. Kiva, an organization that allows individual web users to support microloans managed by intermediaries in developing countries, complies with SEC regulations by making it impossible for lenders to earn a positive financial return. [36] Zidisha, which operates an eBay-style platform that allows individual web users to transact directly with computer-literate borrowers in developing countries, does allow lenders to earn interest, but complies with SEC regulations by not guaranteeing cash payouts. [37] RocketHub testified in Congress June 26, 2012 in support of the JOBS Act and its intent to offer equity crowdfunding. [38]

The bill was also supported by David Weild IV, former vice-chairman of NASDAQ, who also testified before Congress. Studies written by Weild, co-authored by Edward H. Kim and published by Grant Thornton, "identif[ied] changes to stock market structure that gave rise to a decline in the IPO market", and thus "gave rise to the JOBS Act", according to Devin Thorpe of Forbes magazine. This has led some to refer to Weild as the "father" of the JOBS Act. [39] [40] The first company to complete an initial public offering using provisions under the Jobs Act was Natural Grocers by Vitamin Cottage (NYSE:NGVC) on July 25, 2012. [41]

Criticism

The final Act faced criticism on several fronts. Some proponents of crowdfunding were disappointed that the final version of Title III, the crowdfunding exemption, capped investment at $1 million and required a number of disclosures that could make the exemption unworkable for smaller start-ups, especially given the $1 million cap. [42] This title was also criticized for not including a means by which investors could form crowdfunding funds, thereby diversifying their investments. [43] While Title IV included some loosening of restrictions on the use of Regulation A, it did not grant full federal preemption. That is, for certain offerings companies still must register the offering with each state. State-by-state registration was one of the chief reasons the Government Accountability Office found for the remarkably low interest in Regulation A offerings pre-JOBS Act. [44]

The Act was also criticized by some consumer groups. For example, the bill was opposed by some securities regulators and consumer and investor advocates, including the AARP, the Consumer Federation of America, the Council of Institutional Investors, and others. [45] Among the complaints were that the loosening of investment protections would expose small and inexperienced investors to fraud. [27] The Consumer Federation of America characterized an earlier version of the legislation as "the dangerous and discredited notion that the way to create jobs is to weaken regulatory protections". [46] Criminologist William K. Black had said the bill would lead to a "regulatory race to the bottom" and said it was lobbied by Wall Street to weaken the Sarbanes–Oxley Act. [47] It is also opposed by labor unions, including the AFL-CIO, [48] the AFSCME, [45] and the National Education Association. [45]

Criticisms were levied against the House version of the bill as "gutting regulations designed to safeguard investors", [49] legalizing boiler room operations, [50] "reliev[ing] businesses that are preparing to go public from some of the most important auditing regulations that Congress passed after the Enron debacle", [51] and "a terrible package of bills that would undo essential investor protections, reduce market transparency and distort the efficient allocation of capital". [52] The bill also removed certain disclosure requirements, such as the disclosure of executive compensation, which were not in the spirit of the bill. [53]

Current status

Titles I, V, and VI of the JOBS Act became effective immediately upon enactment. [54] The SEC approved the lifting of the general solicitation ban on July 10, 2013, paving the way for the adoption of Title II. [55] As of October 2014, Titles III, and IV are awaiting more detailed rulemaking by the SEC, which did not meet its original deadlines. [56] Some have attributed the delay to former SEC chair Mary Schapiro's concerns over her legacy. [57] Title III rules were proposed for adoption by the SEC on October 23, 2013. [58] On May 16, 2016, Title III Regulation Crowdfunding rules enacted by the SEC went live. [59]

In an open meeting March 25, 2015, the Securities and Exchange Commission (SEC) elected to approve and release the long-awaited final rules for Title IV of the JOBS Act (commonly referred to as Regulation A+). Per the final rules, under Regulation A companies will be permitted to offer and sell up to $50 million of securities to the general public subject to certain eligibility, disclosure and reporting requirements. [60] While some offerings will be exempt from state registration requirements, in exchange for more extensive reporting requirements, others will not be and will still have to register with every state in which the securities are offered. For offerings made over the internet, this arguably means registering in all 50 states. [61] The final Regulation A rules were published in the Federal Register on April 20, 2015, and became effective on June 19, 2015. [62]

On October 30, 2015, the Securities and Exchange Commission "adopted final rules to permit companies to offer and sell securities through crowdfunding.  The Commission also voted to propose amendments to existing Securities Act rules to facilitate intrastate and regional securities offerings." [3]

On November 2, 2020, the SEC made large changes to expand on the scope of the act. [63] In Regulation Crowdfunding, the maximum offering amount increased from $1.07 million to $5 million. In Regulation D, the same limit increased from $5 million to $10 million. In Regulation A, the same limit increased from $50 million to $75 million. Other marketing, advertising, or so-called "testing the water" constraints are also loosened.

Industry associations

A number of US organizations have been founded to provide education and advocacy related to equity crowdfunding as enabled by the JOBS Act. They include:

See also

Related Research Articles

<span class="mw-page-title-main">U.S. Securities and Exchange Commission</span> Government agency overseeing stock exchanges

The U.S. Securities and Exchange Commission (SEC) is an independent agency of the United States federal government, created in the aftermath of the Wall Street Crash of 1929. The primary purpose of the SEC is to enforce the law against market manipulation.

<span class="mw-page-title-main">Sarbanes–Oxley Act</span> 2002 U.S. law regarding corporate accounting

The Sarbanes–Oxley Act of 2002 is a United States federal law that mandates certain practices in financial record keeping and reporting for corporations. The act,, also known as the "Public Company Accounting Reform and Investor Protection Act" and "Corporate and Auditing Accountability, Responsibility, and Transparency Act" and more commonly called Sarbanes–Oxley, SOX or Sarbox, contains eleven sections that place requirements on all U.S. public company boards of directors and management and public accounting firms. A number of provisions of the Act also apply to privately held companies, such as the willful destruction of evidence to impede a federal investigation.

<span class="mw-page-title-main">Securities Act of 1933</span> US federal law regulating securities

The Securities Act of 1933, also known as the 1933 Act, the Securities Act, the Truth in Securities Act, the Federal Securities Act, and the '33 Act, was enacted by the United States Congress on May 27, 1933, during the Great Depression and after the stock market crash of 1929. It is an integral part of United States securities regulation. It is legislated pursuant to the Interstate Commerce Clause of the Constitution.

The Investment Company Act of 1940 is an act of Congress which regulates investment funds. It was passed as a United States Public Law on August 22, 1940, and is codified at 15 U.S.C. §§ 80a-180a-64. Along with the Securities Exchange Act of 1934, the Investment Advisers Act of 1940, and extensive rules issued by the U.S. Securities and Exchange Commission; it is central to financial regulation in the United States. It has been updated by the Dodd-Frank Act of 2010. It is the primary source of regulation for mutual funds and closed-end funds, now a multi-trillion dollar investment industry. The 1940 Act also impacts the operations of hedge funds, private equity funds and even holding companies.

In the United States under the Securities Act of 1933, any offer to sell securities must either be registered with the United States Securities and Exchange Commission (SEC) or meet certain qualifications to exempt them from such registration. Regulation D contains the rules providing exemptions from the registration requirements, allowing some companies to offer and sell their securities without having to register the securities with the SEC. A Regulation D offering is intended to make access to the capital markets possible for small companies that could not otherwise bear the costs of a normal SEC registration. Reg D may also refer to an investment strategy, mostly associated with hedge funds, based upon the same regulation. The regulation is found under Title 17 of the Code of Federal Regulations, part 230, Sections 501 through 508. The legal citation is 17 C.F.R. §230.501 et seq.

Private placement is a funding round of securities which are sold not through a public offering, but rather through a private offering, mostly to a small number of chosen investors. Generally, these investors include friends and family, accredited investors, and institutional investors.

<span class="mw-page-title-main">United States securities regulation</span> Law and regulations that relate to Securities

Securities regulation in the United States is the field of U.S. law that covers transactions and other dealings with securities. The term is usually understood to include both federal and state-level regulation by governmental regulatory agencies, but sometimes may also encompass listing requirements of exchanges like the New York Stock Exchange and rules of self-regulatory organizations like the Financial Industry Regulatory Authority (FINRA).

A direct public offering (DPO) or direct listing is a method by which a company can offer an investment opportunity directly to the public.

<span class="mw-page-title-main">Dodd–Frank Wall Street Reform and Consumer Protection Act</span> Regulatory act implemented by the Obama administration after the 2008 financial crisis

The Dodd–Frank Wall Street Reform and Consumer Protection Act, commonly referred to as Dodd–Frank, is a United States federal law that was enacted on July 21, 2010. The law overhauled financial regulation in the aftermath of the Great Recession, and it made changes affecting all federal financial regulatory agencies and almost every part of the nation's financial services industry.

<span class="mw-page-title-main">Confidentcrowd</span> American equity crowdfunding portal

Confidentcrowd was an equity crowdfunding portal based in Phoenix, Arizona. The company was associated with the Jumpstart Our Business Startups Act of 2012 and was identified as one of the earliest Crowdfunding portals launched in the United States after the JOBS Act made crowdfunding for equity permissible under US law. The company is also noted for its unusual crowdfunding approach which requires investment seekers to undergo screening by FINRA-licensed Broker-Dealers before they can access potential funding.

The crowdfunding exemption movement in the U.S. is the effort to exempt relatively small investment offerings, sold to the general public in small blocks, from the registration and compliance requirements demanded of large public companies. Inspired by the growth of non-investment crowdfunding, advocates see such exemptions as a way to spur innovation, economic activity, and small-business job creation, but opponents see such changes as invitations to fraud that will target unsophisticated investors. The movement has seen success with the passage of the Jumpstart Our Business Startups Act, which went into effect in 2016, and a growing number of state-level exemptions.

<span class="mw-page-title-main">An Act to exempt a particular class of securities from the Securities and Exchange Act</span>

The bill H.R. 701, an act to amend a provision of the Securities Act of 1933 directing the Securities and Exchange Commission to add a particular class of securities to those exempted under such Act to provide a deadline for such action, was a bill introduced into the United States House of Representatives in the 113th United States Congress. It was introduced on February 14, 2013 by Rep. Patrick McHenry (R-NC). The bill would amend the Securities Act of 1933 to set a new deadline regarding domestic securities for the Securities and Exchange Commission (SEC).

<span class="mw-page-title-main">SEC Regulatory Accountability Act</span> US financial bill

The SEC Regulatory Accountability Act is a bill that was introduced into the United States House of Representatives in the 113th United States Congress. The bill would amend the Securities Exchange Act of 1934 to give new directions to the Securities and Exchange Commission (SEC) governing its regulation creation and amendment process. The SEC would be required to assess the significance of the problem they are considering addressing, determine whether the estimated costs would outweigh the estimated benefits, and identify alternatives to their proposed regulation. The bill is intended to help protect the financial sector from excessive, burdensome regulations created by the SEC. The bill would do this by ordering the SEC to conduct a cost-benefit study before issuing any new rules to ensure that the expected benefits of the new rule would outweigh the expected costs of imposing it.

<span class="mw-page-title-main">Retail Investor Protection Act</span>

The Retail Investor Protection Act is a bill that would delay some pending regulations being written by the United States Department of Labor until the Securities and Exchange Commission has finalized their own rules. The rules in question are rules that would describe "when financial advisors are considered a fiduciary, which means they must work in their clients' best interest." The bill passed the United States House of Representatives during the 113th United States Congress.

<span class="mw-page-title-main">Small Business Capital Access and Job Preservation Act</span>

The Small Business Capital Access and Job Preservation Act is a bill that would exempt investment advisers from the Security and Exchange Commission’s (SEC’s) registration and reporting requirements when they provide advice to a private equity fund with outstanding debt that is less than twice the amount of capital that has been committed to and invested by the fund. This requirement was created by the Dodd–Frank Wall Street Reform and Consumer Protection Act. The Small Business Capital Access and Job Preservation Act passed in the United States House of Representatives during the 113th United States Congress.

Fundrise is a Washington, D.C.-based financial technology company founded in 2010 that operates an online investment platform. Fundrise has been labeled as the first company to successfully crowdfund investment into the real estate market.

SeedInvest is an equity crowdfunding platform that connects startups with investors online. The company was founded in 2012 and launched in 2013. SeedInvest has focused on building liquidity in the platform by attracting high-net-worth individuals, family offices and venture capital firms. SeedInvest screens and vets deals before allowing them to take advantage of the JOBS Act exemption permitting General Solicitation. In September 2014 the company launched a partnership with Angel Investing website Gust. In October 2018, SeedInvest was acquired by peer-to-peer payment company Circle Internet Financial Ltd.

Equity crowdfunding is the online offering of private company securities to a group of people for investment and therefore it is a part of the capital markets. Because equity crowdfunding involves investment into a commercial enterprise, it is often subject to securities and financial regulation. Equity crowdfunding is also referred to as crowdinvesting, investment crowdfunding, or crowd equity.

In the United States under the Securities Act of 1933, any offer to sell securities must either be registered with the United States Securities and Exchange Commission (SEC) or meet certain qualifications to exempt it from such registration. Regulation A contains rules providing exemptions from the registration requirements, allowing some companies to use equity crowdfunding to offer and sell their securities without having to register the securities with the SEC. Regulation A offerings are intended to make access to capital possible for small and medium-sized companies that could not otherwise bear the costs of a normal SEC registration and to allow nonaccredited investors to participate in the offering. The regulation is found under Title 17 of the Code of Federal Regulations, chapter 2, part 230. The legal citation is 17 C.F.R. §230.251 et seq.

Groundfloor is an American real estate investing and lending marketplace. It was the first real estate crowdfunding company to achieve SEC qualification utilizing Regulation A+ since the regulation became operable through the JOBS Act.

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