The First Enforcement Action Under the JOBS Act

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I believe the Securities and Exchange Commission has taken its first enforcement action under the JOBS Act. The SEC announced fraud charges against a Spokane Valley, Wash., company and its owner for misleading investors with claims to raise billions of investment capital under the Jumpstart Our Business Startups (JOBS) Act and invest it exclusively in American businesses.

Every critic has some concerns about investor protections in a post-JOBS Act securities world. There has been a whirlwind of entrepreneurs and wanta-preneuers who want to take advantage of the crowdfunding rules and the removal of the ban on general solicitation for private offerings.

“The JOBS Act is intended to help small businesses raise capital, not to legalize fraud or give unscrupulous entrepreneurs a right to make false claims to fleece investors.”
- Michael S. Dicke, Associate Director in the SEC’s San Francisco Regional Office.

According to the SEC complaint, Daniel Peterson sold his USA Real Estate Fund 1 securities, raising more than $400,000 based on false and misleading statements.  According to the business plan, the fund could invest in real estate, mortgage notes and technology companies. I consider all of these to be high risk investments. But the website touts that investors won’t lose their money.

Q: How do you assure the investor that they will not lose their investment?
A: Our protection works much the same as flood insurance or earthquake or tornado insurance. We buy Financial Instruments comprised of US Government treasuries, Top Rated US and World Insurance and Reinsurance Companies (GIC and Annuity) contracts. The fund reserves the right to invest up to 5% of its assets in other Debt securities, such as but not limited to, high yield securities, foreign bonds, and money market instruments, when to do so would be considered within the strategy of the fund and in the best interest of its investors. These are the financial instruments that will provide the money to insure against loss.

I’m not quite sure how to reconcile that answer with the investment strategy.

According to the SEC complaint, the firm claimed it would offer additional securities and raise more investment capital, made possible by the Jumpstart Our Business Startups Act. Again, its not clear to me how passage of the JOBS Act would create value for the fund investors. I suppose that’s one of the reasons the SEC is making a claim against the fund for false and misleading statements.

It is clear that this is not a case of legitimate fundraising trying to take advantage of the JOBS Act before the JOBS Act regulations are put in place. If you, like me, were looking for a juicy and sordid tale instead of mere fraud you will be disappointed with the headline.

Equity crowdfunding portals are not yet legal because the regulations have not been enacted. General solicitation for Rule 506 private placements is not yet legal, because the regulations have not been enacted. Of course there are legal ways to use exemptions in these situations, but they are all pre-JOBS Act.

Anyone currently touting ways to get rich using the JOBS Act should be viewed as suspect. They are merely speculating on what the SEC may do and how entrepreneurs would take advantage of the potential new regimes.

You need to draw the distinction between entrepreneurs and wanta-preneuers.

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