Marketing Securities Online Is Different From Marketing Everything Else: Three Basic Rules To Follow To Avoid Trouble

I’m not sure that my AI image generator could possibly make a creepier person than this guy

Since the advent of the intertubes, we live in a world of constantly being marketed to. Back in the “good old days” it used to just be TV and radio commercials, junk mail in the mailbox and ads in newspapers and magazines. You could easily avoid or ignore them. You could change the station on the radio when commercials ran. You could fast forward past taped TV ads in shows, or switch channels while watching live. Newspapers had ads, but your eyes knew to ignore them. But today, wherever you are online, it’s impossible to not be bombarded by ads. They are everywhere, and they are so well done that sometimes you do not even know you are seeing or hearing an ad. 

This is truly the golden age of marketing. So much data is available that you can literally drop an ad in front of a group of people online in your exact customer demographic  and have that ad tailor made for your product or services, then have that ad follow them everywhere they go online. Nearly everyone buys things online now, and we never have to look far to find what we want because the wonderful people at Google and Meta and Microsoft mine so much data that they can have an ad in front of you in seconds after you showed even the most remote indication that you are interested in buying something. 

With the passing of the JOBS Act in 2012, we suddenly had the ability to sell something else online – investments in private companies and startups. Small businesses had a new tool to raise capital and the restrictions against advertising that existed for more than 80 years were gone. The prohibition against the general public investing in startups and small businesses that were not publicly traded were gone.

So why has this golden age of marketing not allowed free-wheeling, Katy-bar-the-door marketing of these securities online? Sure, we see ads for companies raising capital, but why are these ads so limited in what they say, or how they look?

This article will explore some of the reasons why marketing securities online is not as easy as marketing almost anything else online. It will also delve into some tips on how to stay out of trouble when your private company decides to sell securities using marketing and advertising online and in traditional media.

For the most part, this article will discuss three methods of raising capital online: Reg A, Reg CF, and reg D, Rule 506(c) which are all parts of the 2012 JOBS Act. Some of what I write may apply to all securities in general, but I’m mostly focused on how small businesses raise money online under these three JOBS Act laws to raise capital to try to become big businesses.

The First Step: Avoiding “Securities Fraud” in Marketing

I know what you’re thinking. “I’m not committing fraud, I’m just running an ad to try to sell stock in my company!” The reason rules for marketing securities are different from the rules about selling almost anything else online is that if you screw up in your online securities ads, you may be guilty of what federal law refers to as “securities fraud.” You could face civil penalties. You could face lawsuits. You could go to jail. This is serious stuff. Imagine running a relatively innocuous ad about how your company’s new T-shirts are the best and most comfortable T-shirts in the world, and having someone knock on your door and arrest you. That never happens. But say that the stock you are selling in your company is the best investment in the world, and you can expect a knock on your door, or more likely a nasty letter from a state or federal securities regulator before a knock.

Securities fraud under federal law is the misrepresentation or omission of information to induce investors into purchasing securities. The primary applicable federal law is Rule 10b-5 of the Exchange Act of 1934. Rule 10b-5 states that criminal and/or civil liability may occur if (a) there was a misrepresentation of a material fact (2) done knowingly (3) that a securities purchaser relied on and (4) the reliance on the material misrepresentation caused a loss.

In addition, state governments may also impose civil and criminal liability on those engaged in securities fraud based on state laws. But for the most part, if you follow the federal law as it applies, you will almost always be in good shape with state laws.

The key here that makes securities marketing different is the absolute prohibition on misrepresentation in your ads. We have all seen ads for cereal, shoes, cars and almost every consumer good that say things we all know are simply not true. Companies selling products and services have, for decades, been given some leeway for “puffery” or certain exaggerations of marketing claims. The courts tend to use this test, or something similar, to walk the fine line between puffery and false advertising: Is the claim “blustering and boasting that no reasonable consumer would rely on?” If so, it is puffery and not false advertising. One court said “a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion” is puffery, and not false advertising.

Unlike the rest of the marketing world, there is no place for “puffery” when marketing securities. Don’t expect the general rules of puffery above will be used when the SEC, a state securities regulator or a competitor makes a complaint or starts an investigation into a potentially false or misleading statement.

Under securities laws, you must be clear to not be false or misleading in any manner. When you plan to make any statement, or use any language or graphics in any marketing material, review it in the most critical fashion you can – not in the most favorable manner. Assume the regulator or court will construe it in the worst manner possible, not in a manner favorable to you. If it could be considered misleading, don’t take any chances. Do not use it.

You do not want that knock on your door.

Here are the three basic rules to avoid committing securities fraud. Of course, there are just guidelines. In all instances, get legal advice from a securities lawyer.

Basic Rule 1: Be 100% truthful and use verifiable facts in all marketing communications

Ads, interviews, social media posts, emails and every other form of marketing need to be 100% truthful and all statements presented as facts must be 100% verifiable as true.

My basic rule is... if it could be read in any way as being misleading, do not say or use it at all. There is no reason to take a chance. Securities regulators do not care about “puffery” and will look at any statement that exaggerates, even if it is not believable at all, to be a false or misleading statement and a violation of securities laws.

Basic Rule 2: Use Qualifying Words and Terms When Giving An Opinion

If you have to discuss anything uncertain (I’m not talking about something false or misleading) make sure you qualify your statements.

For example, if you want to talk about your product being the best in the marketplace, understand the fine line between these two statements:

(1) We have the best product in the marketplace.

(2) We believe we have the best product in the marketplace.

The second statement is clearly an opinion, and while it is best to avoid even these types of statements when discussing a securities offering, sometimes it happens anyway, especially in a live interview. In those cases, be sure to qualify your statement with “we believe” or “we feel” or similar language. It’s not a perfect defense, and if the words after the qualifying statement are false or misleading, then qualifying it will not help. But always train yourself and your marketing team to qualify any opinion statement that cannot demonstrable be proven as fact to give your company the best chance to avoid problems.

Again, review all securities marketing statements in the most critical and negative way before using them because that is how a regulator or court will read them. They do not care if you interpret what you said differently. Your opinion as to how it could be interpreted the way you want it to be interpreted means nothing in this context. That is not how a regulator will interpret it.

Basic Rule 3: Try to avoid making statements about future projections unless there are lots of disclaimers and qualifying language

Projections of future sales, revenues, profits, etc. are rarely accurate, despite everyone’s best efforts. Once those projections are made public, they become fodder for regulators and plaintiff’s lawyers to make claims that you promised something that was false or misleading. It’s better to stay away from projections altogether. I almost always advise my clients to not use projections at all to promote the sales of their securities because of their uncertainty and the potential liability. But in circumstances where projections are used despite the great risk they bring to the table, there should be significant and thorough disclaimers surrounding the projections if they are in writing. If used in a media interview, they should be tempered by qualifying words and language – and best to do so in excess of what I discussed above given that you are talking numbers that people will rely on to make investment decisions.

But in my opinion, the best policy is to not use projections at all when marketing securities.

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This article is not and should not be considered legal advice. Yes, I am a securities lawyer but no, you did not hire me to provide you with legal advice. In all cases, consult with your own lawyer as every legal situation is unique and do not rely on my educational and informative article as legal advice.

How To Make An Effective Equity Crowdfunding Video

Take an AI generated movie set background, sprinkle in some bad photoshop of my head, and Voila! I’m a film director!

Why is a securities lawyer talking about making videos? Those who know me understand, but for those who are new to the world of Kendall Almerico, let me give you a tiny bit of background.

I’m been shooting and editing film (and later video) since I was a teenager. Not to date myself, but that means I was making Super 8 movies and cutting them with a razor and using tape to hold clips together. I remember when video cameras first came out and there was no way to edit them at home, so anything you shot had to be shot in order — no mulligans — to make a cohesive movie.

Go ahead, make dinosaur jokes.

I later worked in television and radio stations and I have an undergraduate degree in broadcasting. You used to have to pretty much work in broadcast related business to have access to video editing equipment. Now, anybody and everybody can shoot and edit quality video with the tiny device we all keep in our pockets (or our hands)  — but that doesn’t mean everyone can make a great video that tells a story and sells a product or company. That takes not just technical knowhow, but a certain set of skills that involves knowing how to communicate to the masses in a persuasive manner.

I’m not a professional videographer, but I know how to tell a story. I know how to communicate with investors through video. And I’m smart enough to know that a style of video that works for one company, does not necessarily work for every company.

There are some common elements in most successful equity crowdfunding videos, and this article will talk about those elements, and give you some real world examples of videos that I have used personally with clients to successfully to raise significant capital in the equity crowdfunding space.

Get Attention Quickly

You only have a few seconds to grab a viewer’s attention and to keep it. Many experts (people who write things on the internet are always “experts” so you know they’re telling the truth!) say that if you don’t grab a viewer’s attention in the first 10 seconds of an online video, you will lose that viewer. It’s true. People have short attention spans — especially when watching video online. So you need to grab people’s attention right away. I’m not sure 10 seconds is really a make or break point, but you definitely need to do something at the beginning of the video to keep people engaged.

If they stop watching your video after 10 seconds, there is a very strong chance they are not going to invest in your company. So don’t start off your video with something boring. Things like a great visual, an exciting phrase or a famous face will hold attention. Do what works for your company, but do it right away at the beginning of your video.

And I know all of this because I’m an expert!

Here is an example from my client, international craft brewing sensation BrewDog. More about them later (and the full video this screenshot came from), but when they launched their first successful Reg A offering a few years ago, the first thing you saw on their equity crowdfunding video was this:

You may not have known that BrewDog called their equity crowdfunding offerings “Equity for Punks.” You may know anything about them. But you see a vibrant Times Square backdrop and some attention grabbing words: Propaganda Outreach. If you stopped watching after seeing this, you were never the kind of person who was going to invest in their company anyway.

Don’t Go Too Long

A lot of “experts” will tell you that your video should be under 2 minutes. Some will tell you under 90 seconds. While this would be ideal given the short attention spans of your typical TicTok viewer, it’s not really accurate when it comes to equity crowdfunding videos. The reality is, most companies will not be able to effectively introduce their company, explain an investment opportunity and convince strangers to invest in 90 seconds. The random time limitations people impose also contradict the reality that if you make a 60 minute compelling and interesting video, people will watch it for 60 minutes. Hell, every major motion picture made is 90 minutes minimum, and a great film leaves you on the edge of your seat not leaving, but instead wanting more.

This goes back to my story telling comment earlier in the article. If you can tell the complete story in 90 seconds, you should do so. But if it takes 3–5 minutes to do so, and you can do it in a very interesting and compelling way, 3–5 minutes is also okay. It all depends on what you are saying, who is saying it, how it is being said, and if you have a creative team who knows how to keep the subject matter interesting.

I’m going to use three examples of videos made by equity crowdfunding clients of mine to launch their online offerings – one of which is still ongoing as this is published. All three were very successful, and collectively these three offerings raised millions of dollars from thousands of investors. The lengths of the three videos are 2:07, 2:38 and 5:15! When you see each of these videos below, I doubt you will be looking at your watch and wondering why they are longer than 90 seconds. They are compelling, attention grabbing and interesting. But if you are going to use a 5 minute video, you better make sure it’s not boring or repetitive. Show it to a few people when it’s done but before you launch it. If you hear “That was too long” and — believe me, people will tell you if it’s too long — then edit it down and make it tighter.

Get People Excited About Your Company As Quickly As Possible

Remember, you are not making The Godfather or Citizen Kane.

You’re making a commercial for your company. You’re not trying to sell tickets to a movie theatre. You’re trying to sell investments in your company. This is not time for Quentin Tarantino film techniques with a timeline where you have to watch half a movie that seems chronologically challenged then it all ties together at the end (with lots of blood and cursing). You’re making an ad. It needs to grab people quickly. I needs to get people excited about your company quickly. It needs to get people thinking “I’ll watch the rest of this, I’m interested in investing in this company!”

So don’t wait until 30 seconds into a 2 minute video to explain what your company does. Tell the viewer right away. Let them know why your company is special — right away. Use visuals — this is video after all — do not have a talking head spending 30 seconds explaining something that one picture or 5 seconds of video can explain immediately!

Real People Get Real Results

Not every great equity crowdfunding video has someone central to the company in it. But most do. And there is a reason why.

Lots of people bet on the jockey, not on the horse.

Most companies using equity crowdfunding, whether it is Reg A or Reg CF, are at a relatively early stage. Apple is not using equity crowdfunding. Apple can do a video, use its famous logo, throw up great imagery and sounds — and sell you its products — because its Apple! You already know who they are and what they do.

Most companies using equity crowdfunding are not particularly well-known. You have to explain to people what you do, and who you are. And having a face that is integral to the company to do the explaining is usually the right call. Look, I’ll be the first to admit if the founders of a company do not look good or do not sound great on video, this concept gets thrown out the window. But most founders believe in their company, know more about the company than anyone else, and speak with passion about their company and that belief, knowledge and passion come through in a well-made video.

Here’s an example from a Reg A video for my client Armed Forces Brewing Company who sold out their first Reg A offering. They are now on their second Reg A offering which you can read about here: www.OwnArmedForcesBrewingCo.com Their entire launch video is below, but this is the first frame of the video from their initial Reg A offering:

That guy is Robert J. O’Neill, a highly decorated retired Navy SEAL who also just happens to be the guy who shot and killed Osama Bin Laden. He is one of many veterans who own this military tribute brewery. While many people recognize him, not everyone does, so the first words out of his mouth are “I’m Robert J. O’Neill, former Navy SEAL Team 6 operator, and I shot a famous guy.” Even if you didn’t hear the audio, you have seen (a) the company’s logo and branding, (b) American flags and (c) guns and ammo. If this kind of imagery is not appealing to a viewer, that viewer is not likely to invest in Armed Forces Brewing Company. But for people who are fans of the U.S. military and veterans, this opening shot and tiny bit of dialogue have sucked you in and kept you watching. This is what the beginning of an effective video needs to do.

Remember the graphic that started the BrewDog video I showed you earlier — the one that said Equity For Punks: Propaganda Outreach? Right after that graphic, the video cuts to BrewDog’s founders. 

They are shot from a very low angle and they have NYC lights behind them. It’s visually strange, but grabs your attention. And it fits their company. Here are your founders — this is who we are! And when you see the full video a little further down in this article, you will hear the passion in their voices as they tell you how excited they are to bring their global success to America!

Problem and Solution

There is a widely held belief that every pitch deck, every video and every other thing done to attract investors must identify a problem, then explain why this company has the magical solution!

I’m not one to argue with things that work, and I agree that this makes sense in many cases — particularly when you have a new product or service that people may not understand. If you have to explain that a problem exists because people do not inherently know about it, then a “problem and solution” section of your video is probably a good idea. In fact, you may want to lead with it.

But if your company is entering a flourishing and crowded market that already exists, forcing a “problem and solution” into a video may just be a waste of time. Leave it in your deck or on your offering page. For example, my client BrewDog is a craft brewery behemoth that is a true unicorn — with an enterprise valuation of more than $1B. They have successfully run many equity crowdfunding offerings around the world, and have raised hundreds of millions of dollars from hundreds of thousands of crowdfunding investors worldwide. When they used Reg A to fund their first U.S. brewery, they were already a successful and profitable brand all over Europe, but had almost no footprint or visibility in America. They simply believed that they had a better product, a better approach and better everything than craft brewers in America.

There wasn’t a “problem” with the craft brewing industry in the U.S. they were trying to take their share of. They didn’t offer a “solution” to a problem. They just needed to educate people about who they were, what they bring to the table and their overseas success. So their crowdfunding launch video (click on the photo below to watch the video) did not have (or need) a “problem and solution” section.

This video launched one of the first Reg A offerings in the U.S. and drove thousands of people who had never heard of BrewDog to invest millions in the company to launch their U.S. operations. One of the reasons I love this video so much is that it really sends a message about what BrewDog is all about. You see the two founders and you know their personalities right away (bet on the jockey not the horse). It is high energy and you hear about their success overseas (get people excited as soon as possible). It is professional looking and has great video and sound (see below for good video and sound). It asks for an investment (see below for don’t forget the ask). You see that they like to “stick it to the man” by dropping “fat cats” all over Wall Street. While this approach may not appeal to everyone, and probably not to many traditional stock market investors at the time, it was an incredibly effective video to introduce a company to a new market for that company, and it worked.

What I like about it most is that I made an Alfred Hitchcockian cameo in the video. Yes, that’s me — the extremely handsome movie star everyone is staring at before he is unceremoniously smacked down by a parachuting fat cat. If there were credits in the video, I would have been listed as “Dude in suit on Wall Street pummeled by falling feline.”

Talk About Your Business — But Don’t Make It All About Numbers

In the world of public companies traded on NASDAQ or the NYSE, it’s all about the numbers. Revenues, profitability, PE ratios and a million other stats that analysts spew out to analyze how a company is performing. Public company management often spend more time worrying about their stock price than anything else. Numbers are important. But don’t make the mistake of thinking that most Reg A or Reg CF offerings should be treated anything like public companies when it comes to talking about business numbers in an equity crowdfunding video.

Hit a few main numbers and statistics in your video, but if you include more than 2–3, you are going to lose your audience. Watching a crowdfunding video is nothing like watching a stock market analyst talking about a publicly traded company on CNBC. If your video drones on and on about numbers and stats, I can assure you many people will stop paying attention. It’s hard to entertain and keep people engaged when you are droning on and on about one number after another.

If you are going to use numbers and stats, consider adding graphics to illustrate. There is a reason people say a picture is worth a thousand words. People will remember a graphic with a number at a far greater percentage that a number than is merely spoken. For example, take a look at this video from another client of mine that recently completed a successful Reg CF offering, Wunderground Coffee.

Look at how Wunderground’s Reg CF video illustrated a key number/stat to show their growth.

This is one of my favorite crowdfunding videos because (a) it worked (b) it told a lot of important stories about the company in a short time (c) it showed off the amaxing founder Jody Hall and her team of very successful entrepreneurs with multiple exits and a history with an industry giant (d) explained why mushroom coffee is delicious and healthy and a new growing industry and (e) had lots and lots of “food porn” shots of their amazing coffee.

Don’t Forget “The Ask”

Crowdfunding Video 101 — Ask your viewers to invest. Ask more than once if you want. Definitely ask at the very end — in the perfect world a viewer of the video watches the video then goes straight to the INVEST button on the same webpage and pulls the trigger. Reminding the viewer of this is important and a necessity for any equity crowdfunding video.

Don’t be subtle. Ask for an investment. Ask for money. I’ve had clients try to be clever and not want to mention their video is about getting people to invest. This misguided desire to be subtle and not ask directly for an investment reminds me of how some people run ads for an equity crowdfunding offering. They run an ad about something sexy, something interesting, something to drive a click on the ad — but never mention the ad is driving the person who click to an investment opportunity. This is almost always a mistake, and gets a click from someone who then finds out they are being asked to invest. People do not like being deceived. It’s a waste of ad money driving clicks from people who then get surprised, and not in a good way, that you are asking them for money to grow your company. If you are running ads and not telling people you are seeking an investment, you’re wasting your money and their time. Same thing with your video. If you suck them in, keep them excited and never tell them you are asking them to invest, you just wasted an opportunity.

Last, But Not Least — Good Sound and Video Quality Matter

Don’t get me wrong — you do not have to get Martin Scorsese to direct your equity crowdfunding video or use a Hollywood crew of 50 people to shoot a 2 minute video. I’ve seen great equity crowdfunding video that were shot on an iPhone and edited in iMovie. But even those paid attention to two important details: great video and good sound quality.

Great video means having good lighting and keeping everything in focus. Good sound quality usually means having an external microphone especially if you are using an iPhone. Nothing is` more unprofessional than a poorly lit video where the person talking isn’t using a mic, and it sounds like they are in a tin can or the Lincoln Tunnel.

The point is you are asking people to invest in your company. People want to invest in a company that will be successful. If you can’t invest a few bucks to make a great video when it is often the first and only impression a potential investor will have of your company, then you’re not projecting success to the audience that matters. If people think you can’t even make a decent video that looks and sounds good, why should they trust you with a much more difficult task of building and growing an entire company?

A few final words…

There is no cookie cutter, one-size-fits-all approach to an equity crowdfunding video. In fact, one video used to launch a Reg A offering that sold out and was oversubscribed, pretty much broke most of the rules above. Watch this equity crowdfunding launch video for Armed Forces Brewing Company  —  a military tribute brewery that pledges to employ 70% if their national workforce from veterans and their family members. The video is funny, silly, goofy and a parody of a lot of things. Some people loved it and shared it and it was seen by a huge number of people, Some people didn’t like it at all because it was too campy, but they remembered it. It features a famous person — retired Navy SEAL Robert J. O’Neill who shot and killed Osama Bin Laden, playing an over-the-top cartoon version of himself shooting and blowing things up.

Humor in an equity crowdfunding video is a big risk, and although this one paid off, it’s not always easy to do the right way. Armed Forces Brewing Company had a strategy from the beginning that they were going to market their company using humor and it worked for them at the beginning, and still works today as they are in a second Reg A offering as I publish this. Watch another of their promotional videos used during their Reg A offering.

Again, they break all the video rules, but it worked for Armed Forces Brewing Company. They oversubscribed their first Reg A offering and are on their way to doing the same in their second Reg A offering.

The point here is that every company is different and your equity crowdfunding video should reflect your company’s ethos, mission and character. Compare the BrewDog video above to the Wunderground video above. Two very effective videos, but completely different style, tone, and direction.

One thing I cannot overemphasize — get help from professionals when you create your equity crowdfunding video. The professionals may be your marketing team, your social media team, outside videographers or others. But this is an area where guidance, both technical (video, audio, music, graphics) and in the overall writing and presentation is invaluable.

Your equity crowdfunding video can make or break your Reg A or Reg CF offering. Don’t make the mistake of glossing over this incredibly important part of a successful online capital raise.

This article is not and should not be considered legal advice. Yes, I am a securities lawyer but no, you did not hire me to provide you with legal advice. In all cases, consult with your own lawyer as every legal situation is unique and do not rely on my educational and informative article as legal advice.

Top 10 Tips and Tricks For A Successful Reg A or Reg CF Equity Crowdfunding Offering

This AI generated image that is supposed to illustrate the title of this article is really creepy. These two bizarre, plastic-skinned, dead-eyed Tom Cruises with a Flock of Seagulls wigs are going to haunt me in my dreams forever.

Part Six of a Six Part Series Comparing Regulation A and Regulation Crowdfunding

So you’ve decided to use equity crowdfunding to raise capital for your company. You’ve made the decision to use either Regulation A (a/k/a Reg A or Reg A+) or Regulation Crowdfunding (a/k/a Reg CF). Now comes the fun part... what do you have to do to actually raise capital?

If it’s not clear already, equity crowdfunding is not like the movie Field of Dreams. Just because you build an offering page online, does not mean that investors will come. Reg A and Reg CF are all about your company driving potential investors to your online offering page. The key to every successful equity crowdfunding offering is marketing to drive investors.

 This article is all about marketing.

 By marketing, I mean doing all of the things to drive traffic to your equity crowdfunding offering page, then to convert that traffic into investors. Suffice to say, there are a lot of moving parts to make this work. This article will explore the Top Ten things you must do, in my opinion, to have a successful offering and raise millions of dollars online selling securities in your company through either Reg A or Reg CF.

 1. Plan your marketing well before you launch

Depending on how much you are trying to raise and how large your “low hanging fruit” group of potential investors may be, you may have a fairly simple and inexpensive marketing plan, or you may need a very complex and costly one.

 By “low hanging fruit” I mean people who already love your company, your fans and customers, your email or newsletter lists and your social media followers. If this group numbers in the hundreds of thousands, and you are only trying to raise $1M, your entire marketing plan might be a series of emails and social media posts to that crowd.

 But if you don’t have a huge group of built in potential investors, then you need to be ready to market to find investors because, believe me, they are not going to find your offering otherwise. At the very minimum, you will need email and social media marketing assets ready to go at launch and people in place to respond to online comments and responses to your emails. You may need to contact a PR firm. You may need to engage influencers to help spread the word. You will likely need to run digital ads, and if so, will need someone who understands that world to help you do it effectively.

 At a bare minimum, you should set up a social media calendar, prepare emails in advance, and get your ducks in a row with every marketing asset you plan to use well before you go live and start accepting investments. Once the offering hits the internet, you should already have everything ready to go and have your marketing machine cranking. If you wait to do any of this until you have launched, you are way behind the eight ball and will be playing catch up.

 Create a plan. Write it out and disseminate it. Make sure everyone knows their role and the expectations you have of them. Have them ready to rock and roll the day you launch. Then stay on your team and be sure they do what they are supposed to do.  

 And remember, if you do any marketing prior to the formal launch of your Reg A or Reg CF offering, you must follow “Testing The Waters” rules including having the testing the waters disclaimer on all marketing you do prior to your official launch. Failing to do so will get your company into regulatory trouble.

 2. Have a great video

 I cannot emphasize strongly enough how important a crowdfunding video is to the success of most equity crowdfunding offerings. Many people who are driven to your offering page online will watch your video first. If they are impressed, some will invest right then without even reading much more on the page. I have seen this happen over and over again. Others will be intrigued enough to learn more on your page and read further. But if your video is bad, unprofessional, has poor audio or video quality, or otherwise doesn’t get people excited about your company, you have lost that potential investor forever.

 Your chances of success are greatly enhanced by the video you use. I could, and will one day soon, write an article on crowdfunding videos alone, but for now let’s leave it at the video needs to tell your company’s story and get people excited about investing.

 3. Build a compelling offering page

 On most equity crowdfunding sites, investors see the video and some basic information about the offering and your company first. This area one sees when they first visit your offering page is called “above the fold” – a reference to the old newspaper saying about the news that was on the paper’s front page at the top – or above where the paper was folded. This part of the offering page is by far the most important, for the same reasons the video is important. There is a strong chance that the section “above the fold” containing your video is going to be the determining factor as to whether you get someone excited to be an investor, or lose them before they ever scroll down and see everything else you have to offer.

 I always say to my clients “If you want to become a billion dollar company, start acting like one now whenever you can.” The above-the-fold top of your offering page needs to make your company look like you are, or someday will become, a billion dollar company. Show off your logo. Include something visual about your company to grab attention. Write a killer headline and if there is any text above the fold, use it to your advantage. Don’t make people scroll down the page to learn what your company is all about, or to highlight the one or two biggest selling points of your offering.

 Below the fold, be sure to use a good mix of short paragraphs and photos or graphics. Highlight the things every investor wants to know: What am I investing in? Who are the people running the company I’m investing in? How will your company take on the competition in your industry? What are you using my money for? How will I get a potential return on my investment?

 Don’t overdo it. I’ve seen companies spend inordinate amounts of time designing offering pages that go on and on into a seemingly bottomless pit of unimportant minutiae that a huge percentage of site visitors are never going to read. Remember, the tedious disclosures, financials and legalities are in your SEC filing and anyone can read that document on the offering page if they want to get all the details. The offering page is, bringing it down to basics, just a big ad for your securities offering. Treat it like the ad that it is. Don’t turn it into War and Peace because very few people will ever scroll down to read the entire thing. Keep paragraphs short, use interesting and eye grabbing photos and graphics, and use highlights – not details – to convey the opportunity.

 4. Kickstart your offering with friends and family

 On your equity crowdfunding offering, the very top of your offering page will display an important number – the total amount of money you have raised to date. The day you launch, this number is going to read $0.00. That’s not a good thing for people to see.

 When people from the general public start to see your offering page, you need to have already raised money, so that big fat zero doesn’t chase them away. Remember, nobody likes to be the first one on the dance floor.

 The solution to this - and by far one of the most important but also most ignored rules to a successful crowdfunding offering – is to go to friends and family to invest in your offering before you show it to anyone else.

 If your friends and family are not interested in investing in your company, why would you think anyone in the general public would be interested?

 Here is another important tip: when you reach out to friends and family, this means the friends and family of everyone on your management team, your board, your advisory board, and any employees willing to help. The more people involved, the more friends and family you will reach and the more capital you will raise.

 Also, if you’re not the kind of person who likes to ask people for money, you should not be using equity crowdfunding. If you’re a not big enough believer in your company to want to ask your friends and family to be a part of its growth, then you should not be using equity crowdfunding.

 I had one client raise more than $350,000 from his friends and family on the first day of his offering. He had reached out a few days before to give them all a heads-up, and on launch day all he had to do was give them the URL and remind them how important it was to get the investment done that day. It was like a well-oiled machine. When he then started driving investor traffic to the page, people saw that in one day he had raised 1/3 of his goal already. That created a sense of urgency and FOMO.  The rest of the offering went very well, needless to say.

 5. Go after low hanging fruit first

 So you brought in your friends and family first and your offering page shows you already have investors and have raised capital. What’s next? Time to go to the next group of “low hanging fruit” and invite your customers, clients, and social media followers to invest.

 This group already knows your company. They are likely fans of your company. You do not have to pay anything to get to them. So take advantage of this opportunity and email them for a few days. Invite them to invest before the general public. Generally, I recommend giving your customers and your email list a chance to invest before your social media followers, because they will convert better in most cases. That increases the numbers on your offering page before people from the general public, who might come across your social media posts but really don’t know you, see the offering and how much has been raised. People like to follow a crowd. So use your crowd to pump up the numbers first before trying to get strangers to invest.

 Also note, these emails and social media posts are not a one off. Follow best practices on email solicitations and social posts, but you have to do far more than one email and one social post for this to work. Remember, not everyone opens every email. And more importantly, only a small percentage of your social media audience sees every post.

 6. Digital Ads

 You’ve hit up your friends and family, you’ve reached out to your social media audience and you have emailed your customer list. You now have some money in the war chest. The next three tips and tricks talk about bringing in people from the general public who may or may not know your company or brand.

 The most common way is through digital ads.

 Remember, you are also marketing your company when you run these ads. If done effectively, you could increase sales and revenues also from these ads. You may get new business opportunities from these ads, even from people who do not invest. Some people may not invest, but they may try your company or buy your products. You will have used cookies and pixels to track those who visited your offering page and didn’t invest, so you can remarket to them for sales and investments.  Many of those who did not invest will come back in and invest when you get to the end of the offering where you let them know time is running out.

 Effective digital ads for equity crowdfunding are an art, and a science. Unless you have a lot of expertise in house, you should consider hiring an outside agency to do this for you. Running ads is an expensive way to drive traffic and convert it into investors, so spend the money wisely. Look for an agency with success in Reg A and Reg CF in offerings similar to yours, and they can help define the audience, create lookalike audiences, use the right platforms for ads and advise where to spend the money – new leads, retargeting, etc. Google and Meta are the key, but others can also work. How you use Google and Meta ads are important to leave to people with experience using ads to raise investment capital.

 Remember, running digital ads is a process. Do not expect the same results in week one of running ads as you will get when the audience is refined, the ad creative is tweaked, the timing of ads is established and you have figured out what works, where it works and when it works. To really be effective, my experience has been that it usually takes 60-90 days of running ads to get it to a point where you can rely on ads to produce a consistent return. You have to be patient before scaling up your ad spend, but once you do, you should be able to determine with a decent about of certainty how much each dollar of ad spend will return for you in investment commitment dollars.

 7. PR

 Raising capital online is a numbers game. Driving eyeballs to your offering page is what the marketing is all about. There are very few things that drive as many eyeballs in a short period of time than a great PR placement that gets your offering in front of a huge crowd of people.

 Do not confuse public relations with putting out an online or on the wire press release. A press release has some benefit, but will not be likely on its own produce a lot of investment dollars. A good PR firm will get you media interviews and stories in media that reach a lot of people.  Don’t expect to end up on the Today Show or in the Wall Street Journal. If you do – Bonanza! Remember, a well-placed local media interview or two can produce great results from potential investors who may already know your company and may be more likely to invest in something local to them than something 3000 miles away.

 The key is getting the interviews or placements, and making sure to pitch the investment opportunity when you do. If you just talk about your company, but never mention the investment or the URL where people can invest, you wasted a golden opportunity.

 8. Influencers

 People get very excited about bringing on influencers and reaching a large number of people through them. I’ll be the first to tell you from experience that influencers can work – after all, Reg A and Reg CF are a numbers game and if you drive enough eyeballs to your offering page, you will produce investors. But you need to have the right influencers and the right messaging, and be ready to engage with the influencers’ audiences who ask questions or make comments. Having a social media influencer who gives cooking tips to millions of followers talk about investing in your new game-changing flying car is probably not going to produce the results you are looking for.

 One important thing to look for in addition to aligning with the influencers’ crowd – look for engagement in addition to the size of their reach. A person who posts to 1,000,000 followers and gets 15 likes and no comments is far less valuable to you than an influencer with 50,000 followers who repeatedly get 5,000 likes and 1,000 comments every time they post.

 You also have to be very careful with influencers when it comes to securities laws. Just like you must not make false or misleading statements if your company posts on social media, when you pay influencers to post for your company, they have to be truthful and not mislead. They have to disclose if they were compensated. Leaving the content totally up to an influencer can lead to disaster. An unchecked influencer may post that an investment in your company will make people rich overnight, or create other unrealistic expectations that will draw the attention of securities regulators. Keep a tight rein on what influencers post or say, and you will keep yourself out of trouble.

 9. Investor Relations

 This is, by far, the one extremely important area that I see companies fall short on. You absolutely need someone, or more than one person, to (a) communicate with investors, applicants and leads (b) to answer their questions and help them out when help is needed (c) to follow up on social media comments and posts – including comments under your digital ads and (d) to manage your ongoing emails and marketing to your investor base.

 Let me talk from experience here. No matter how much someone invests in your company – be it $100 or $1,000,000, they want to be kept informed about what is going on. The easiest way to avoid having a lot of questions and messages and phone calls from a large investor base is to communicate with them regularly, and effectively. They own part of your company – so let them know what is going on with the company they own. I strongly suggest weekly e-mail and/or video updates to help keep investors informed and engaged. These can be 5 minute videos or 3-4 paragraph emails. Remember, you want them to be brand ambassadors and company evangelists, but they will not do that unless they know what is going on and you make it easy for them to help by keeping them engaged.

 If you take care of your investors, keep them informed, and treat them like the owners of the company that they are, you will find a healthy percentage of those investors will help you promote your online offering and otherwise. If people who paid you money to invest become an army of marketers for you, your marketing budget will decrease while you continue to raise capital from the additional crowd your investors bring to the table.

 10. Perks

 What, if anything, do you give to your investors in addition to the stock the pay for?  You do not need to give away perks, but if you do, you need to do it right. Perks are things as simple as a branded hat or T-shirt that every investor gets, or as elaborate as a once-in-a-lifetime experience that the biggest investors receive. But don’t make the mistake of thinking that the perks you offer are there to drive investment on their own. Nobody invests in a company to get a hat or shirt. They appreciate getting the perks and those hats and shirts can be good marketing for your company, but nobody is making an investment decision based on getting inexpensive swag. 

 That being said, perks can be the thing that makes someone increase their investment to get to the next level of perks. Let’s say you offer no perks with a $250 investment, but offer a brand new to the market item that normally retails for $250 (but only cost you $25 to manufacture) at the $500 investment level. You may get people who invest $500 to get that item, thinking that they are getting something “free” in return - either the item or the additional securities. This is also an effective way to get existing investors to increase their investment later. Monitoring your investor base and sending out segmented emails reminding them that they can get to the next perks level with an additional investment – and telling them what those perks are – can drive additional investment. This is especially effective at the end of an offering when FOMO kicks in.

 But keep in mind, this will not work as well if you have not been keeping in touch with your investors and keeping them informed.  If someone invests, then they do not hear anything from you for 30 days, and you send them an email asking them to invest more – good luck getting them to pull that trigger again. On the other hand, if in that 30 days, they received a weekly email or video message telling them of your company’s latest news, showing them the success you are having and treating them like the owners that they are, you have a far better chance of getting them to increase their shareholdings.

One last word on perks: you must fulfill the perks when you say your will. Not only could you get into legal trouble by not doing so, but you will lose investor confidence – and thus lose their help in growing your company – if you do not timely send them what you promised them.

 These Top Ten Tips and Tricks are just a few of the important parts of your equity crowdfunding marketing campaign. Each part requires a great plan, and great execution. They also all work together and help drive eyeballs from different approaches and angles.  This is why having your team ready and prepared and engaged throughout the entire capital raise is incredibly important to your success.

 One last note – remember that the rules for marketing in Reg CF and Reg A are different. For example, you cannot include the “terms of the offering” in your Reg CF marketing except on the offering page. Make sure you get advice from competent legal counsel for all aspects of your securities marketing so you stay out of trouble.

This article is not and should not be considered legal advice. Yes, I am a securities lawyer but no, you did not hire me to provide you with legal advice. In all cases, consult with your own lawyer as every legal situation is unique and do not rely on my educational and informative article as legal advice.

Reg A and Reg CF: Funding Portals and Broker Dealers and Online Investment Websites, Oh My!

Part Four of a Six Part Series Comparing Regulation A and Regulation Crowdfunding

See Part One Here, Part Two Here, and Part Three Here.

Once again, my AI image generator does its best to illustrate the title of this article. I’m fairly sure funding portals and broker-dealers are not really fighting to the death in an ancient Roman arena, and even if they are – the funding portal would probably have two swords like the broker-dealer, and not try to “gladiate” with one sword and one sword handle. And what the hell is a “funding poltal” anyway?

The two equity crowdfunding provisions of the JOBS Act, Regulation A and Regulation Crowdfunding (Reg CF) are very similar laws but also very different. While both opened the door to new capital formation for private companies — particularly allowing anyone to invest in these companies and not just wealthy people — the way these securities offerings are actually executed is very different and subject to hundreds of pages of SEC rules. One of the biggest differences is where a company may hold these offerings online. That is the subject of this new article in my series breaking down the similarities and differences of the two groundbreaking equity crowdfunding laws.

Can I hold the offering on my own website?

For Reg A — yes you can. For Reg CF, no you cannot.

Regulation A does not specify where the securities offering that can raise up to $75M may reside online. As a result, a company may hold the offering on their own website if they want. Or, they may host it on a website they do not own. Or, they could hold the offering on both at the same time. Reg A gives a company plenty of choices when it comes to where the offering is found online.

Not so with Reg CF. With Reg CF, your company may raise up to $5M but it must only reside online on an “intermediary” website. This means either a broker-dealer owned website, or a new entity that came into existence with Regulation Crowdfunding called a funding portal. A funding portal is a FINRA and SEC regulated entity that may only host Reg CF offerings. A funding portal is much like a mini-broker dealer — but with significant restrictions as to what it can do to help market your offering. You cannot hold a Reg A or any other kind of securities offering on a funding portal… they are exclusively for Reg CF offerings.

Why would I host a Reg A offering on my own website?

Let’s talk about Reg A where you can host the offering on your own website. If your company already has a large engaged customer base, social media audience, fan base or other large group of people who love what you do, then holding a Reg A offering on your own website is often a great idea. Or, if you have a large marketing budget to send huge numbers of people to your offering page, why not send them to your own website rather than somewhere else? You will still need software to process the investments, and in most cases you will need a broker-dealer behind the scenes to make the offering legal and compliant in some of the 50 states. But hosting the offering on your own website brings about many advantages.

First, you have complete control of the design and content on your own site. This keeps your branding consistent and the look and feel of your Reg A offering can be the same as the look and feel you already established for your company.

Second, you control the traffic. You are directing potential investors to come to your site, and not to a third party site. Think of it this way — a majority of the people your company drives to the Reg A offering page will not invest. They may watch your video and read about your company, but statistics show that only a small percentage will actually pull the trigger and become investors. On the other hand, every one of those non-investors now knows more about your company and your brand. They may well become customers, clients, social media followers, and fans. They can buy your product online or use your services perhaps, even if they don’t invest. If they were sent to a third party site and decided to not invest, they would then need to leave that site, find your company site, and then make a buying decision to have the same potnetial economic effect as if you just sent them to your site to begin with.

Third, you control the data. This is the most important one, and the fact that many third-party sites that host offerings do not tell you. When you host the offering on your own site, you have access to all of the data from the traffic you send there. When you are on someone else’s site, you may not have access to any of that data.

The most obvious benefit to this for experienced e-commerce folks is the ability to re-market to traffic. Through the use of pixels, Google Tag Manager, cookies and other well-known marketing methods, someone who came to your website may be remarketed to — but if they are sent to someone else’s site you may not have complete control over this. Think about how you look at that new pair of shoes online, and then for the next week all you see are those shoes in your social media feed, in ads alongside websites you visit, and even in emails. That could be your company reminding someone who is a hot or warm lead — they were interested enough to visit your Reg A offering page once — to take a second look and to get them over the investment finish line. Or, even if they do not invest, they can be marketed to as customers of your products and services.

The second most important benefit, and one somewhat related to the retargeting I mentioned above, is the ability to market to “abandons” or those who not only got to your offering page, but started to invest then dropped out for some reason. In my experience from being involved with a lot of Reg A and Reg CF offerings, at least 25% of people who start the investment process typically abandon the investment for one reason or another. If you are hosting the offering on your own site with software giving you transparency — you now have the ability to directly market to those folks who abandoned. Email marketing, text messages, phone calls — you know who these people are and you have their email address and phone number. Closing these hot leads can means hundreds of thousands of dollars, or even millions of dollars, in many cases. But if you are on someone else’s website, and they do not provide you with information about who abandoned the investment application, you left a lot of people who were interested in vesting and a lot of their money sitting on the table.

Should I use a funding portal for my Reg CF offering, or a broker-dealer?

Given that you have no choice with Reg CF and must hold the offering on someone else’s website, you have a choice to make. Do you want to hold it on a funding portal alongside dozens of other companies trying to raise capital from the same audience, or do you want to use a specialized broker-dealer that sets up a webpage they control for you that looks as much as possible like your company website?

This is a complicated question with no one-size-fits-all answer. But you have to pick one or the other because Reg CF requires you to only have the offering hosted in one place — unlike Reg A where you could have the offering simultaneously hosted in several places.

Let’s look at the factors that help determine whether your Reg CF offering is better off on a funding portal or a broker-dealer website.

Fees

Look at the fees charged by funding portals and broker-dealers in detail. As a general rule, broker-dealers will charge lower fees than a funding portal — but that is not always the case when you factor in all fees.

The “success fee” meaning the percentage of every dollar you raise that is paid to the funding portal or broker-dealer can range dramatically. Some funding portals charge upwards of 7% for this fee, while some broker-dealers charge far less. Some funding portals also charge an equity fee, where they get paid an additional fee of your company’s equity based on how much money you raise. Broker-dealers may also charge this equity fee for Reg CF.

That fee is only a piece of the puzzle to consider. The other three fees to be aware of are (a) any up-front fees (b) payment processing fees and (c) escrow fees.

Many funding portals and broker dealers charge up-front fees — even though they may defer those until your first closing. These fees can cover due diligence, setting up offering pages, and much more. It is not unusual to see this fee in the $5,000+ range. Make sure you factor this fee in when making a decision.

Payment processing fees are a whole different world, and can be very difficult to understand in some cases. When someone invests using a credit card, debit card or an ACH bank-to-bank transfer, there are companies in the middle of that process that charge to move the money around — these are the payment processors. Credit card fees can be 4% or more, which means, as a company, you are really only getting 96% of what you raise if you have to pay this processing fee. Keep in mind, you may be able to pass that fee along to investors — but how many of us cannot stand seeing that we as consumers are paying an extra charge when we buy concert tickets for example. You will lose some investors when they get to check out in the investment process and see that their $500 investment is really a $520 investment to get $500 worth of stock.

Make sure you get detailed payment processing fees from the funding portal or broker-dealer, including what fees you are charged if someone cancels their investment or attempts a chargeback. When you add up payment processing and the funding portal success fee, you are often at 10% or more of every dollar you raise going to pay for these services. Factor all of this in to your final decision as to where to host the Reg CF offering, and whether to pass some of those fees along to investors.

Escrow fees are the last piece of the puzzle. Reg CF offerings require a “qualified third party” — typically an escrow account — to hold funds from investors until they are disbursed to your company when you hold a closing. These escrow accounts come with additional fees — and those fees need to be factored into your hosting decision. Opening the escrow account alone can be a $1000+ charge, and breaking escrow to hold a closing typically also has a fee associated with it. Wiring your funds to you also has a fee attached. These fees can add up, especially if you hold multiple closings during your offering.

Data Transparency

I mentioned this earlier but this is something you absolutely need to know before you go with either a funding portal or a broker-dealer. Ask them what data you get from the investors you are sending to their website using your marketing dollars. Ask them if you get this data in real time through a dashboard. Most importantly, ask them what data you get when someone starts to invest, but abandons the process.

As I publish this article, major players in the funding portal industry still refuse to share any abandon data with companies using their services. So that 25%+ of people you paid to send to the funding portal who abandon the investment process — you will never even know they existed because some funding portals will not share any of that data with you — and they make some specious claims as to why they cannot share data with you that you have every right to possess. Sure, the funding portals know who those people are. The funding portal has their contact information. You paid for that investor to go to the funding portal and you do not even get the benefit of trying to close that investor. But you can be assured that those people you paid for are being marketed to by the funding portal for other companies raising capital on their site. At this time, you have a far better chance at transparency of this data with a broker dealer like Cultivate Capital (whose parent company I own part of, for full transparency) that specializes in Reg A and Reg CF offerings, and who gives you access to all of the available data rather than hiding it from you like some funding portals will do.

Target Amount. Another factor to keep in mind when choosing a funding portal or broker-dealer involves your “target” amount that Reg CF requires. Every Regulation Crowdfunding offering must set a target amount that must be raised in order to hold a first closing and get your new capital into your company bank account. Most of the bigger funding portals are now requiring that you raise the first $50,000 or more yourself before your company’s Reg CF offering is even shown to the funding portal’s investor base. This makes it difficult for a small company trying to raise capital on a tight budget, as you will not have access to this money to use for marketing the offering or otherwise until that target threshold is met.

Broker-dealers tend to allow you to set your target amount at a lower number to hold your first closing. They tend to not be as restrictive on how often you can hold a closing and get your money after the first closing when the target amount has been met.

What Other Rules Do They Impose? Both funding portals and broker-dealers may impose additional rules to how your offering can be structured. You need to find out up front what those rules are, as they may not fit within how you want your company’s investor base to look. For example, some funding portals will try to push you into using a SAFE, preferred equity, or some other structure that you are may not be comfortable with. A SAFE, in particular, can be confusing to new investors who may love your company already, but do not understand what they receive when they invest in an “agreement for future equity” versus a straightforward “here are your shares of stock in our company!” Ask about these requirements up front before you decide — and remember — when you are going to your customers, fans, social media followers and the like — the more difficult it is for them to understand their potential investment, the more likely they will not invest.

Audiences. This is one area that is very tricky and I can tell you without question based on my experience that many companies get sucked into picking a funding portal because of the number of “investors” on the funding portal. But beware of thinking that a funding portal with a large number of users means your offering will get funded by those people.

Let me use the exact words of one of the biggest funding portals to prove to you that the grand majority of investors in your offering will not come from the huge database of possible investors that the funding portal so highly touts as the reason to pick them.

“Do you have a strong community of friends, supporters, fans, or customers? Remember, about 67% of a typical (Reg CF offering) comes from the founder and team’s community, and the other 33% comes from our community. The first $50,000 comes entirely from your network, so it’s crucial to have the support of your community for a successful… round.”

While this funding portal says 33% comes from their “investors” my experience industry-wide is that it is almost always closer to 5–10% in most cases, and that 90–95% of investors come from the company raising capital and their marketing efforts.

Think about it logically. All of those investors on the funding portal got there because some company raising capital sent them there to invest in that particular company. Let’s say three of those companies whose investors are now part of the funding portal’s database were selling (a) glow-in-the-dark talking condoms (b) a moonshot flying car in the very early stages of development and (c) a cutting edge tech device that made clipping your toenails easier. Your company is a successful pizza restaurant chain that want to raise capital to expand and open new locations. Do you think there is any overlap in interest for your company and the condom, flying car or toenail clipper investors? No, there isn’t.

But once you send thousands of your pizza-loving customers and fans to the funding portal and they invest — the number of investors on the funding portal goes up again! And now your pizza fans and customers who became your investors are now getting marketed to constantly by the funding portal who is trying to sell your investors stock in companies that make glow-in-the-dark talking condoms, flying cars and hi-tech toenail clippers.

Broker-dealers may or may not do the same thing, so this is a question to ask before you make your final decision. But whatever you do, weigh the value of +/- 5–10% of the money you ultimately raise in a Reg CF offering coming from the funding portal’s “millions of investors” versus the 25% or more of investors you sent to the funding portal that abandon the investment process, but the funding portal never gives you any of their data to remarket to.

Making a decision about where to host your Reg A or Reg CF offering is more complicated than most think. It’s easy to get sucked in by the hype of big audiences of possible investors and to think this is a short cut to funding your company. It’s also easy to simply look at fees and to go with the lowest success fee. Consider all of the options, the money, the data, and everything else above before making a decision as to where your investors will see your equity crowdfunding offering.

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Coming next week: Part 5 of the 6 part series: Specific Offering Structures and Liquidity. Also, this article is not and should not be considered legal advice. Yes, I am a securities lawyer but no, you did not hire me to provide you with legal advice. In all cases, consult with your own lawyer as every legal situation is unique and do not rely on my educational and informative article as legal advice.