Small businesses are an important part of our national economy, accounting for as much as 40% of our total economic activity and providing society with important services and products.

Small businesses face daunting economic, structural, and legal impediments when they attempt to acquire external capital. The absence of financial inter-mediation services means that they are almost always on their own to find investors. Their small capital needs mean that their relative offering costs are often sky high. Federal and state securities rules significantly exacerbate these economic and structural disadvantages by imposing onerous and unwarranted conditions on their search for external capital.

While, initially, one may view these rules as a matter of unfairness to small entrepreneurs, more broadly, and perhaps more importantly, society is a loser when small businesses are denied the right to compete fairly for capital.

Regulation A appears on its face to offer small businesses a way out of this dilemma. It provides an exemption from the registration requirements of the Securities Act of 1933 for small issuers who offer their securities publicly. The exemption is conditioned upon the issuer's disclosure to investors of prescribed investment information.

Regulation A, however, is almost never used by small entrepreneurs, even though it is the only federal exemption generally available that allows a broad, efficient search for investors.

The SEC and state securities regulators are to blame for the impotency of Regulation A. For their part, the SEC seems never to have understood small businesses, their capital needs, their importance to our economy, and the special circumstances they face when they attempt to access external capital. States, on their side, seem always to resist attempts to formulate exemptions that allow small issuers to search widely and efficiently for capital.

The irony is that the Commission's current iteration of Regulation A provides a framework upon which to construct a sensible and appropriate exemption for public offerings by small issuers. The Commission has the power to transform Regulation A from its present fallow state into a useable tool that promotes efficient capital formation by small businesses and appropriately protects investors.

In this article the author offers data demonstrating the non-use of Regulation A and makes the case for a revision of Regulation A. His data show the importance of small businesses to the national economy, small businesses' need for external capital and the under use of Regulation A. He explains the economic, structural and legal impediments that small businesses face in their capital formation and the reasons why Regulation A is so underutilized today. The author concludes by expressing faith in the fundamental theory of Regulation A and explaining steps the Commission could take to take to make Regulation A an effective tool for small business capital formation, benefiting both small entrepreneurs and society.

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Notes/Citation Information

Delaware Journal of Corporate Law, Vol. 31, No. 1 (2006), pp. 77-123



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