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Looking Under The Hood At The Washington State Crowdfunding Bill

William Carleton, Contributing Editor, VC Experts


A Washington State crowdfunding exemption is not yet a law, but substantially identical versions of a crowdfunding bill have now been passed by both houses of the Washington State legislature. So it's a good time to have a look at what the Washington State legislators have come up with.

We're looking here at the bill as amended on the floor of the Senate and passed by that chamber on March 7. (I should say, we're looking as best as I can tell at the bill in its most active form. If 'm reading the official bill history report correctly, the bill as amended by the Senate should now return to the House for consideration.)

One great thing about it is that no portal is required. Portals are optional.

Now, don't misunderstand me; crowdfunding portals are good things, in the area of accredited crowdfunding, particularly, I think. But one of the main ways the federal crowdfunding bill lost its way – forfeited most of the strengths of the original Rep. Patrick McHenry bill that passed the US House of Representatives with such huge bipartisan support and had the support of the White House – was when the Senate added a requirement that a portal must be used.

The Washington bill otherwise copies key parameters of the federal statute:

  • $1,000,000 annual limit, per issuer;
  • same (confusing) per-investor limits (whatever; just say the limit is $2,000 and call it good);
  • escrow of proceeds until a stated target is hit.

But no requirement for audited financials, no new theories of personal liability for directors and officers, no (oxymoronic) ban on advertising, or any of the other show-stoppers in Title III of the JOBS Act.

All in all, I think the bill makes the grade and, if passed and signed by the Governor in its current form – and if not later undermined by administrative rulemaking – it will meet the criteria I set out last summer in testimony before a Washington State legislative committee.

Of course, the Washington crowdfunding exemption is boxed-in; it stops at the borders with Canada, Idaho, Oregon and the Pacific Ocean. Like all the other state crowdfunding exemptions, on the books or in the works, the potential viability of the Washington bill depends on the federal intrastate offering exemption.

The most surprising thing to me is that advocates for the Washington State crowdfunding exemption – indeed, more to the point, the state legislators themselves – doubled down on the utility of the exemption in helping tech startups. Here's a quote from the bill's preamble:

"Helping new businesses access equity crowdfunding within certain boundaries will democratize venture capital and facilitate investment by Washington residents in Washington start-ups while protecting consumers and investors."

Emphasis added. This is more of a tech startup perspective than we've seen in connection with, say, the equity crowdfunding advocacy efforts in North Carolina or Wisconsin. It may speak in part to the widespread perception in Seattle that venture capital financing in the state is too hard to secure, the ranks of venture capital firms here too thin. (Personally, I believe there is plenty of seed financing available in the Seattle area, though agree that it is true that emerging companies typically have to go out of state for VC financing.)

I'm troubled, however, by the bill's requirement of potentially perpetual public disclosure of competitive business information. The following is from Section 3(3) of the bill:

"For as long as securities issued under the exemption provided by this section are outstanding, the issuer shall provide a quarterly report to the issuer's shareholders and the director by making such report publicly accessible, free of charge, at the issuer's internet web site address within forty-five days of the end of each fiscal quarter. The report must contain the following information: (a) Executive officer and director compensation, including specifically the cash compensation earned by the executive officers and directors since the previous report and on an annual basis, and any bonuses or other compensation, including stock options or other rights to receive equity securities of the issuer or any affiliate of the issuer, received by them; and (b) A brief analysis by management of the issuer of the business operations and financial condition of the issuer."

Emphasis added. That aspect of the bill, unless changed, will compel equity crowdfunders in Washington State to figure out how to sunset or buy-out their crowdfunding investors. You'll want to choose a revenue loan or other kind of security that can be bought out or redeemed. One of the benefits of being a private company is that you don't tell your competitors what you pay your management, don't tell them how much revenue you have, etc. It's a bit crazy to think you'll be putting such stuff on the open web every quarter. (Folks involved in the drafting of Section 6 of the bill: is there something there to narrow the scope of Section 3(3)?)


William Carleton

Bill is a member of McNaul Ebel Nawrot & Helgren PLLC, a Seattle law firm. He blogs every day at http://wac6.com.

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