The following discussion fleshes out a checklist of 'safe harbors' when the issuer and its counsel are faced with a requirement that they take "reasonable steps to verify" accredited investor status. The pending SEC Regulations on the JOBS Act, Title II may list a safe harbor or two; but, if so, the same are not likely to be exclusive. Hence, my personal contribution.
The list is designed as guidance ("Guidance") for practitioners; it is not either a formal or informal legal opinion and it is a work-in-progress in the sense that it can and will be amended when, as and if we are educated by precedents … court decisions, No-Action letters, regulations and rules from a government agency, including State Securities Commissioners the SEC Staff and FINRA plus opinions from other commentators experienced in the sector. Pending such precedents, and in view of the apparent need, the hope (there is no guarantee, of course) is that the Guidance will attract enough of a consensus in the marketplace that it will protect those parties which adopt the same as the current canon against penalties for allegedly willful, reckless, grossly negligent, i.e., actionable, violations of the Securities laws. The idea is that, given adherence to the Guidance in the event of complaints based on the allegation that one of the investors in a 506(c) offering was not in in fact accredited,  the trier of fact will conclude that defendant issuer … compliant with one or more of the steps in the Guidance in fact acted reasonably,a test which is necessarily defined by common sense.
The underlying thesis of the Guidance vis-à-vis "reasonable steps" can be encapsulated in the slang phrase: "if it looks like a duck, walks like a duck and quacks like a duck … it's a duck." The premise is that there could be a number of safe harbors which meet that test. The absence of any one or more does not mean, according to the principle of conspicuous omission, that "reasonable steps" have not been taken; any one of the safe harbors (absent a red flag to the contrary, of course) is sufficient, as per the Guidance, to insulate the issuer from attack by a private or public accusers. And, the list itself is not exclusive; clearly, other fact situations can and will prove to be safe harbors based on the overriding principle that common sense controls when the qualifier "reasonable" is enshrined in the language of the statute or rule. Many roads, in short, lead to Rome. I expect that the list can be expanded sequentially since the critical objective is to reduce, to the extent possible, the frictional costs imposed on small business financings in aid of the objective of the JOBS Act … to foster job creation through such financings rather than to narrow the incidence of emerging growth companies successfully soliciting capital infusions.
The second premise is that, while self certification is not, of and by itself, a safe harbor in 506(c) (versus the universal practice of 506(b) offerings), investors claiming accredited status will initially be required to fill out a questionnaire. For purposes of the Guidance, the questionnaire is substantially more extensive than often seen in the "quiet 506" offerings.  A sample questionnaire, long version, is attached. As circumstance vary, the questions of course, can vary but one item is strongly recommended … namely that the questionnaire be headed by a reminder in capital letters (in order to attract attention of the investor) to the effect that filing a false statement with an agency of the Federal government is a crime under 18 U.S.C. 1001 and that the questionnaires will be maintained by the issuers in a file which is available for inspection by the appropriate Federal agency. The common sense idea, of course, is to impress upon any and all investors the seriousness of the answers they are asked to give.
Herewith a checklist of the safe harbors established by the Guidance, together with discussion accompanying each; the list assumes the investor has self-certified and filled out the questionnaire. The test is whether, as a matter of common sense, his or her word should be believed.
 The practice of private organizations posting online opinions on legal issues is growing apace, presumably in response to the need of entrepreneurs raising or assisting in raising private capital for protection in fact situations where regulatory guidance from an understaffed and overburdened SEC is inadequate or non existent. See, for example, the K&L Gates legal opinion to AngelList, published on the AngelList site and attracting growing interest as the last word on several interpretative jump balls. As my former colleague, Ed Fleischman, once a member of the SEC, would say, the Agency often "regulates by opinion." See also the opinions of Skadden Arps and others which SecondMarket has collected and published on its website.
Joseph W. Bartlett, Special Counsel, JBartlett@McCarter.com
McCarter & English, LLP
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