Despite years of criticism from small business advocates, the Securities and Exchange Commission has made little effort to ameliorate the severe burdens on small companies seeking to raise capital in compliance with the Securities Act of 1933 and SEC regulations. Substantial SEC attention has been given in recent years to improving the capacity of large, publicly-held companies to market securities, but smaller companies have suffered from less-than-benign neglect. Responding to this concern, the SEC recently adopted several proposals, and has others pending, aimed at small business financing. These proposals and adoptions, while modestly helpful, fall far short of addressing the capital formation problems caused principally by SEC regulation and interpretations. In this article, the authors examine the principal hurdles facing small businesses seeking to raise capital under the securities laws, analyze the background and potential bases for the current regulatory regime, offer a critique based upon the twin goals of protecting investors and providing meaningful financing opportunities for smaller businesses and set forth reform recommendations.
Stuart R. Cohn & Gregory C. Yadley, Capital Offense: The SEC's Continuing Failure to Address Small Business Financing Concerns, 4 N.Y.U. J. L. & Bus. 1 (2007), available at http://scholarship.law.ufl.edu/faculty/pub/248