Crowd funding takes hit in Massachusetts

By Bruce Kelly

Dec 9, 2012 @ 12:01 am (Updated 6:31 pm) EST

Massachusetts last Thursday took aim at two players in the small but potentially vast arena of crowd funding, which lets small private companies sell equity directly to investors.

Commonwealth Secretary William Galvin filed fraud charges against two out-of-state oil and gas operations in connection with their sale of unregistered securities to Massachusetts investors. In one, Prodigy Oil and Gas LLC allegedly employed a cold-caller who had been found guilty of theft.

According to the complaint, Prodigy principal Shawn Bartholomae was subject to three state securities regulatory actions and two criminal charges.

Prodigy allegedly sold at least $464,000 in unregistered securities to one Massachusetts investor, according to the complaint.

Fraud charges against Synergy Oil LLC and two of its executives allegedly involve the sale of $35,000 in unregistered securities to two investors.

Both companies, along with their officers and directors, were subject to securities orders in other states revoking their use of private-placement exemptions, according to a statement from Mr. Galvin's office.

The attorney for Prodigy Oil and Gas, Dan Waller, said that the fraud charges were unfounded.

“Certain of the disclosures that the state said were not, were in fact disclosed. And the disclosures about which the state complained were not required to be disclosed under applicable law,” Mr. Waller said.

“The state of Massachusetts never contacted Prodigy or Mr. Bartholomae” before filing its complaint, Mr. Waller said.

Brian McNiff, a spokes-man for the secretary of the commonwealth, declined to comment.

Robert Falco, an executive with Synergy Oil, didn't return a call seeking comment.

JOBS ACT

Crowd funding was en-shrined this year in the Jumpstart Our Business Startups Act. A crowd-funding equity raise can have an unlimited number of investors but is capped at $1 million.

State securities regulators were against the measure and petitioned Congress not to sign off on the legislation. They think that the law was essentially opening a door for those with a history of defrauding investors.

The Securities and Exchange Commission hasn't written crowd-funding rules.

“I support rules that allow early-stage companies to raise capital more easily,” Mr. Galvin said in a statement. “But I would urge the Securities and Exchange Commission to adopt meaningful and effective "bad actor' rules that will disqualify securities law violators, brokers with revoked licenses and other fraud operators from using these exemptions from the securities registration requirements.”

Meanwhile, the North American Securities Administrators Association said last Wednesday that it had found an explosion in the registration of crowd-funding websites.

“An analysis of Internet domain names by state and Canadian securities regulators found nearly 8,800 domains with "crowdfunding' in their name as of Nov. 30, up from fewer than 900 at the beginning of the year,” NASAA said in a statement.

DOMAIN NAMES

“Of these websites, about 2,000 contained content, more than 3,700 had no content and more than 3,000 appeared to be "parked' and serving as placeholders to reserve a domain name for later use or sale. Of the domains with "crowdfunding' in their name, about 6,800 have appeared since April 2012, when the JOBS Act was signed into law,” NASAA said.

When crowd funding does go live, it must take place on SEC-registered websites, noted Sherwood Neiss, principal of Crowdfund Capital Advisors LLC. He added that it requires a crowd, not just one or two people as in the cases filed by Massachusetts.

bkelly@investmentnews.com Twitter: @bdnewsguy