SoftBank-backed Lemonade files to go public

Lemonade, a heavily-backed startup that sells renters and homeowners insurance to consumers, filed to go public today. The company (backed by SoftBank, part of the Sequoia empire, General Catalyst and Tusk Venture Partners, among others) releasing its financial results helps shed light on the burgeoning insurtech market, which has attracted an ocean of capital in recent quarters.

TechCrunch covered a part of the insurtech world earlier this year, asking why insurance marketplaces were picking up so much investment, so quickly. Lemonade is different from insurance marketplaces in that it’s a full-service insurance provider.

Indeed, as its S-1 notes:

By leveraging technology, data, artificial intelligence, contemporary design, and behavioral economics, we believe we are making insurance more delightful, more affordable, more precise, and more socially impactful. To that end, we have built a vertically-integrated company with wholly-owned insurance carriers in the United States and Europe, and the full technology stack to power them.

Lemonade is pitching that it has technology to make insurance a better business and a better consumer product. It is tempting. Insurance is hardly anyone’s favorite product. If it could suck marginally less, that would be great. Doubly so if Lemonade could generate material net income in the process.

Looking at the numbers, the pitch is a bit forward-looking.

Parsing Lemonade’s IPO filing, the business shows that while it can generate some margin from insurance, it is still miles from being able to pay for its own operation. The filing reminds us more of Vroom’s similarly unprofitable offering than Zoom’s surprisingly profitable debut.

The numbers

Lemonade is targeting a $100 million IPO according to its filings. That number is imprecise, but directionally useful. What the placeholder target tells us is that the company is more likely to try to raise $100 million to $300 million in its debut than it is to take aim at $500 million or more.

So, the company, backed by $480 million in private capital to date, is looking to extend its fundraising record, not double it in a single go. What has all that money bought Lemonade? Improving results, if stiff losses. Let’s parse some charts that the company has proffered and then chew on its raw results.

First, this trio of bar charts that are up top in the filing:

Gross written premiums (GWP) is the total amount of revenue expected by Lemonade for its sold insurance products, notably discounting commissions and some other costs. As you’d expect, the numbers are going up over time, implying that Lemonade was effective in selling more insurance products as it aged.

The second chart details how much money the company is losing on a net basis compared to the firm’s gross written premium result. This is a faff metric, and one that isn’t too encouraging; Lemonade’s GWP more than doubled from 2018 to 2019, but the firm’s net losses per dollar of GWP fell far less. This implies less-than-stellar operating leverage.

The final chart is more encouraging. In 2017 the company was paying out far more in claims than it took in from premiums. By 2019 it was generating margin from its insurance products. The trend line here is also nice, in that the 2018 to 2019 improvement was steep.

And then there’s this one:

This looks good. That said, improving adjusted EBITDA margins that remain starkly negative as something to be proud of is very Unicorn Era. But 2020 is alive with animal spirits, so perhaps this will engender some public investor adulation.

Regardless, let’s dig into the numbers. Here’s the main income statement:

Some definitions. What is net earned premium? According to the company it is “the earned portion of our gross written premium, less the earned portion that is ceded to third-party reinsurers under our reinsurance agreements.” Like pre-sold software revenue, premium revenue is “earned pro rata over the term of the policy, which is generally.” Cool.

Net investment income is “interest earned from fixed maturity securities, short term securities and other investments.” Cool.

The two numbers are the company’s only material revenue sources. And they sum to lots of growth. From $22.5 million in 2018 to $67.3 million in 2019, a gain of 199.1%. More recently, the company’s Q1 results saw its revenue grow from $11.0 million in 2019 to $26.2 million in 2020, a gain of 138.2%. A slower pace, yes, but from a higher base and more than large enough for the company to flaunt growth to a yield-starved public market.

Now, let’s talk losses.

Deficits

We’ll talk margins a little later, as that bit is annoying. What matters is that Lemonade’s cost structure is suffocating when compared to its ability to pay for it. Net losses rose from $52.9 million in 2018 to $108.5 million in 2019. More recently, a Q1 2019 net loss of $21.6 million was smashed in the first quarter of 2020 when the firm lost $36.5 million.

Indeed, Lemonade only appears to lose more money as time goes along. So how is the company turning so much growth into such huge losses? Here’s a hint:

This is messy, but we can get through it. First, see how operating revenue is different than the GAAP revenue metrics we saw before? That’s because it’s a non-GAAP (adjusted) number that means the “total revenue before adding net investment income and before subtracting earned premium ceded to reinsurers.” Cool.

That curiosity aside, what we really care about is the company’s adjusted gross profit. This metric, defined as “total revenue excluding net investment income and less other costs of sales, including net loss and loss adjustment expense, the amortization of deferred acquisition costs and credit card processing fees,” which means gross profit but super not really, is irksome. Given that Lemonade is already adjusting it, it’s notable that the company only managed to generate $5.4 million of the stuff in Q1.

Recall that the company had GAAP revenue of $26.2 million in that three-month period. So, if we adjust the firm’s gross profit, the company winds up with a gross margin of just a hair over 20%.

So what? The company is spending heavily — $19.2 million in Q1 alone — on sales and marketing to generate relatively low-margin revenue. Or more precisely, Lemonade generated enough adjusted gross profit in Q1 2020 to cover 28% of its GAAP sales and marketing spend for the same period. Figure that one out.

Anyway, the company raised $300 million from SoftBank last year, so it has lots of cash. “$304.0 million in cash and short-term investments,” as of the end of Q1 2020, in fact. So, the company can sustain its Q1 2020 operating cash burn ($19.4 million) for a long time. Why go public then?

Because like we wrote this morning (Extra Crunch subscription required), Vroom showed that the IPO market is open for growth shares and SoftBank needs a win. Let’s see what investors think, but this IPO feels like it’s timed to get out while the getting is good. Who can get mad at that?

The SEC wants to expand on who is allowed to invest in private securities

As the number of privately held companies continues to grow — and privately held companies stay private longer than ever — public market shareholders who’d earlier benefited from the growth of companies like Google and Amazon are missing out, fears the Securities & Exchange Commission.

It wants to do something about it, too.

Toward that end, the agency today proposed amendments to the definition of “accredited investor” and the definition of “qualified institutional buyer” that would expand the list of people and institutions currently capable of investing in the private capital markets — meaning startups, hedge funds, venture funds and private equity funds.

What would change? Right now, as the SEC defines accredited investors, a person has to have at least $1 million in liquid assets and $200,000 in annual income.

The SEC’s new proposal would enable investors with an entry-level stockbroker’s license or other credentials issued by an accredited educational institution to invest in private securities; “knowledgeable” employees of funds who might not currently meet the SEC’s wealth thresholds; family offices with at least $5 million in assets under management and their family clients; and “spousal equivalents” who could pool their assets for the purposes of qualifying as accredited investors.

The proposed amendments would also add limited liability companies and RBICs to the types of entities that are eligible for qualified institutional buyer status if they meet the $100 million in securities owned and investment threshold in the definition. And the SEC wants to add a new category for any entity, including Indian tribes, that owns “investments,” as defined in Rule 2a51-1(b) under the Investment Company Act, that are valued at more than $5 million and that weren’t formed for the specific purpose of investing in the securities offered.

The proposal is now open to a 60-day comment period. In the meantime, expect there to be strong arguments both for and against the SEC’s moves to expand the private investing pool.

On the one hand, parties focused on investor protection will surely argue that vulnerable investors will be taken advantage of by startups that already have access to more than enough capital (especially startups worth funding). On the other side, expect to hear from the growing number of voices concerned that mom and pop investors have been shut out of American’s innovation economy, and that income inequality is worsening quickly because of it.

You can check out the SEC’s specific proposals here, as well as find instructions on where to submit a comment.

In the dual-class shares debate, the big exchanges should get off the sidelines

Adam Neumann’s fall from grace was astonishingly swift once his company, WeWork, filed to go public in August. Even while his spending was fairly well-documented across time (as were his apparent conflicts of interest), he was humiliated for enriching himself, then ultimately kicked out of the corner office before the company, in the least surprising turn of events in recent weeks, today yanked its S-1 registration.

Neumann never exactly hid who he is or how he operates, so what suddenly sparked the ire of reporters — and investors — around the world? What, exactly, in an ultimately unsurprising IPO filing had people coughing up their morning coffee? Boiled down to the worst offense (including selling his own company the trademark “We” for $5.9 million in stock) was very likely the lock on control that Neumann had set up through a multi-class voting structure that aimed to cement his control. And by ‘cement,’ we mean he would enjoy overwhelming control for not just for 5 or 10 years after the company went public but, unless Neumann sold a bunch of of his shares, until his death or “permanent incapacity.”

Given that Neumann is just 40 years old and (mostly) abstains from meat, that could have been an awfully long time. Yet this wasn’t some madcap idea of his. There are plenty of founders who have or who plan to go public with dual or multi-class shares designed to keep them in control until they kick the bucket. In some cases, it’s even more extreme that that.

Consider at Lyft, for example, Logan Green and John Zimmer hold high-voting shares entitling them to twenty votes per share not until each is dead but both of them. If one of them dies or becomes incapacitated, Lyft’s so-called sunset clause enables the remaining cofounder to control the votes of the deceased cofounder. Even more, after the lone survivor bites the dust, those votes still aren’t up for grabs. Instead, a trustee will retain that person’s full voting powers for a transition period of 9 to 18 months.

The same is true over at Snap, where cofounders Evan Spiegel and Bobby Murphy have designated the other as their respective proxies. Accordingly, when one dies, the other could individually control nearly all of the voting power of Snap’s outstanding capital stock.

Unbelievably, that’s not the worst of it. Many dual class shares are written in such a way that founders can pass along control to their heirs. As SEC Commissioner Robert Jackson, a longtime legal scholar and law professor, told an audience last year, it’s no academic exercise.

You see, nearly half of the companies who went public with dual-class over the last 15 years gave corporate insiders outsized voting rights in perpetuity. Those companies are asking shareholders to trust management’s business judgment—not just for five years, or 10 years, or even 50 years. Forever.

So perpetual dual-class ownership—forever shares—don’t just ask investors to trust a visionary founder. It asks them to trust that founder’s kids. And their kids’ kids. And their grandkid’s kids. (Some of whom may, or may not, be visionaries.) It raises the prospect that control over our public companies, and ultimately of Main Street’s retirement savings, will be forever held by a small, elite group of corporate insiders—who will pass that power down to their heirs.

Why public market investors haven’t pushed back on such extremes isn’t clear, though they’re far from an homogenous group, of course. Surely, some aren’t aware of what they’re agreeing to when they’re buying shares, given that dual-class structures are far more prevalent than they once were. Other investors may plan to churn out of the shares so quickly that they’re uninterested in a company’s potential governance issues later in time.

A third possibility, suggests Jay Ritter, who is a professor of finance at the University of Florida and an IPO expert, is that even with dual-class structures, shareholders have legal rights that limit that ability of an executive who has voting control to do anything he or she wants. Further, the board of directors, including the CEO, has a fiduciary duty to maximize shareholder value.

Says Ritter, “I don’t think it’s accidental that with the We Company, the board of directors let [Neumann] get away with various things, and as it was transitioning to a public company, a lot of [outside participants] pushed and said, ‘This is a company where we’re worried about corporate governance and we’re willing to apply a big discount to people with inferior voting rights.'”

Some investors believe visionary founders should be left to control their companies as long as they wish because, in the case of Alphabet and Facebook specifically, their founders have produced asymmetric returns for many years. But we’re still fairly early into this experiment. Do we really want more situations like we saw with Sumner Redstone of Viacom, with trials over founders’ mental capacity playing out in the media?

For his part, Alan Patricof — the renowned venture capitalist who founded the private equity firm Apax Partners before cofounding the venture firm Greycroft — say he isn’t looking forward to that future. Instead, he think it’s time the exchanges that list companies’ shares do something about it. “I”m not holier than thou in this industry,” says Patricof, “but if you want to be a publicly traded company, you should act like a public company.” To Patricof, that means one vote for one share — period.

There’s a precedent for intervention. Patricof notes that dual-class stock first emerged in 1895 and by that 1926, there were 183 companies with such stock. It became so widespread that the New York Stock Exchange banned the use of non-voting stock until 1956, when it altered its rules for the Ford Motor Company, which only wanted to grant partial voting rights to new shareholders. In the ensuing years, few companies took advantage of dual-class listings until Google bounded onto the scene and now, 15 years after its IPO, it’s like 1926 all again.

Indeed, while Patricof is sympathetic to the argument that founders might need protection for a few years after an IPO, things have gone way too far, in his estimation, and he thinks the best solution would be for the NYSE and Nasdaq to meet for lunch and decide to ban multi-class shares again.

There aren’t a lot of other options. VCs aren’t going to force the issue by turning away founders with whom they want to work. Neither are bankers or large institutional investors like mutual funds; they’ve also shown they’re more than happy to look the other way if it means money in their pockets. “I could be wrong,” says Patricof, “but I don’t think it would that tough for [the big exchanges] to impose a ban that keeps founders from wielding so much power at the expense of the company’s other shareholders.”

Given how fiercely competitive the exchanges are, it’s certainly hard to imagine, this meeting of the minds. But the only other plausible path back to a saner system would seemingly be the Securities & Exchange Commission, and it seems disinclined to do anything about the issue.

Though Commissioner Jackson has advocated for change, he’s leaving the agency soon. Meanwhile, SEC Chairman Jay Clayton would clearly prefer to leave well enough alone. After the S&P Dow Jones Indices and another major index company, FTSE Russell, decided to ban all companies with multiple classes of stock a couple of years ago — they’re uncomfortable with forcing popular index funds to buy stakes in companies that give investors little say — Clayton reportedly called the moves “governance by indexation” at a conference. He’s worried that the indexes are being heavy-handed.

But something has to give, and a lot of market participants might rather see companies being forced to abandon dual-class shares — or, at least, forced to dismantle their multi-class structures after a fixed period — than wait and watch while those with unchecked power get broken into pieces afterward.

The reality is that neither WeWork nor Neumann are the zany outliers they’ve been made to seem. They’re very much a product of their time, and if public market shareholders don’t want to see more of the same, changes must be made. It might be incumbent on the exchanges to make them.

The SEC wants disgraced VC Mike Rothenberg to cough up more than $30 million

Nearly three years ago, TechCrunch reported on suspected fraud committed by Mike Rothenberg, a self-described “millennial venture capitalist” who’d made a name for himself not only by eponymously branding his venture firm but for spending lavishly to woo startup founders, including on Napa Valley wine tours, at luxury boxes at Golden State Warriors games and most famously, hosting an annual “founder field day” at the San Francisco Giants’s baseball stadium that later inspired a scene in the HBO show “Silicon Valley.”

The Securities & Exchange Commission had initially reached out to Rothenberg in June of 2016 and by last August, Rothenberg had been formally charged for misappropriating up to $7 million on his investors’ capital. He settled with the agency without making an admission of guilt, and, as part of the settlement, he stepped down from what was left of the firm and agreed to be barred from the brokerage and investment advisory business with a right to reapply after five years.

Now, comes the money part. Following a forensic audit conducted in partnership with the accounting firm Deloitte, the SEC is seeking $18.8 million in disgorgement penalties from Rothenberg, and an additional $9 million civil penalty. The SEC is also asking that Rothenberg be forced to pay pre-judgment interest of $3,663,323.47

How it arrived at that math: according to a new lawsuit filed on Wednesday, the SEC argues that Rothenberg raised a net amount of approximately $45.9 million across six venture funds from at least 200 investors, yet that he took “fees” on their capital that far exceeded what his firm was entitled to during the life of those funds, covering up these “misdeeds” by “modifying accounting entries to make his misappropriation look like investments, entering into undisclosed transactions to paper over diverted money, and shuffling investments from one [f]und to another to conceal prior diversions.”

Ultimately, it says, Deloitte’s examination demonstrated that Rothenberg misappropriated $18.8 million that rightfully belong to Rothenberg Ventures, $3.8 million of which was transferred to Rothenberg personally; $8.8 million of which was used to fund other entities under his control (including a car racing team and a virtual reality studio); and $5.7 of which was used to pay the firm’s expenses “over and above” the management and administrative fees it was entitled to per its management agreements.

We reached out to Rothenberg this morning. He has not yet responded to our request to discuss the development.

It sounds from the filing like he doesn’t have wiggle room to fight it, in any case. According to the SEC’s suit, the “Rothenberg Judgment” agreed upon last summer left monetary relief to be decided by a court’s judgment, one that “provides that Rothenberg accepts the facts alleged in the complaint as true, and does not contest his liability for the violations alleged, for the purposes of this motion and at any hearing on this motion.”

In the meantime, the lawsuit contains interesting nuggets, including an alleged maneuver in which Rothenberg raised $1.3 million to invest in the game engine company Unity but never actually bought shares in the company, instead diverting the capital to other entities. (He eventually paid back $1 million to one investor who repeatedly asked for the money back, but not the other $300,000.)

Rothenberg also sold a stake in the stock-trading firm Robinhood for $5.4 million, says the SEC, but rather than funnel any proceeds to investors, he again directed the money elsewhere, including, apparently, to pay for a luxury suite during Golden State Warriors games for which he shelled out $136,000.

In a move that one Rothenberg investor finds particularly galling, the SEC claims that Rothenberg then turned around and rented that box through an online marketplace that enables people to buy and sell suites at various sports and entertainment venues, receiving at least $56,000 from the practice.

Ostensibly to keep up appearances, Rothenberg also gave $30,000 to the Stanford University Athletics Department (he attended Stanford as an undergrad) and spent thousands of dollars on ballet tickets last year and early this year, says the SEC’s filing.

Regardless of what happens next, one small victor in the SEC’s detailed findings is Silicon Valley Bank, a sprawling enterprise that has aggressively courted the tech industry since its 1983 founding. Last year, at the same time that Rothenberg was agreeing to be barred from the industry, he made a continued show of his innocence by filing suit against SVB to “vindicate the interests of its funds and investors,” the firm said in a statement at the time.

The implication was that SVB was at fault for some of Rothenberg’s woes because it had not properly wired money to the correct accounts, but the SEC says that SVB was defrauded, providing Rothenberg a $4 million line of credit after being presented with fabricated documents.

A loser — other than Rothenberg and the many people who now feel cheated by him — is Harvard Business School. The reason: it used Rothenberg Ventures as a case study for students after Rothenberg graduated from the program. As we’ve reported previously, that case study — funded by HBS before any hint of trouble at the firm had surfaced  — was co-authored by two professors who had a “significant financial interest in Rothenberg Ventures,” as stated prominently in a curriculum footnote.

Presumably, those ties gave confidence to at least some of the investors in Silicon Valley and elsewhere who later provided Rothenberg with money to invest on their behalf.

You can read the SEC’s 20-page motion for disgorgement and penalties below, along with the 48-page report assembled by Deloitte’s forensic accounting partner Gerry Fujimoto.

SEC vs. Mike Rothenberg by TechCrunch on Scribd

Forensic report re Mike Rothenberg/Rothenberg Ventures by TechCrunch on Scribd

Additional reporting by TechCrunch’s Sarah Perez.

Above: Rothenberg Ventures during better days.

Prosper is the latest Silicon Valley company to get dinged by, and settle charges with, the SEC

Another Silicon Valley company is settling with the SEC: the online lending company Prosper, which the SEC had accused of “miscalculating and materially overstating annualized net returns to retail and other investors.” Prosper has agreed to pay $3 million as part of the settlement, in which it has neither admitted nor denied the agency’s allegations.

According to a new release from the SEC: “For almost two years, Prosper told tens of thousands of investors that their returns were higher than they actually were despite warning signs that should have alerted Prosper that it was miscalculating those returns.” The 14-year-old, San Francisco-based company “excluded certain non-performing charged off loans from its calculation of annualized net returns” that it communicated to investors from around July 2015 through May 2017.

The mistake owed to a coding error that excluded the defaulted loans from its computations, the SEC said, causing Prosper to overstate its annualized net returns to more than 30,000 investors on individual account pages on its site and in emails soliciting additional investments from investors.

The SEC added that “many” investors decided to make additional investments based on the overstated annualized net returns and the “Prosper failed to identify and correct the error despite [its] knowledge that it no longer understood how annualized net returns were calculated and despite investor complaints about the calculation.”

The settlement is the second for the SEC in two week’s time. On April 2, the SEC announced that the founder and former chief executive of Jumio has agree to pay the agency $17.4 million to settle charges that he defrauded investors in the mobile payments and identity verification start-up before it went bankrupt.

How to delay your Form Ds (or not file them at all)

Building a startup is incredibly tough. There are the constant ups and downs, the moments of sheer ambiguity and terror. And so, few moments in a startup’s life are as triumphant — and crystal clear — as closing a round of funding. Yes, yes, raising venture capital shouldn’t be celebrated as a milestone, and the focus should always be on product and users … but it just feels so damn good sometimes just to feel that sense of euphoria: I built something, and now others are giving me potentially millions of dollars to shoot for the stars.

Unfortunately, that clarity is increasingly vanishing. First, “closing a round” is rarely as sharp a distinction as it used to be. Seed rounds (and even later-stage rounds) are often raised over extended periods of time, with many partial closings conducted as new angels and seed funds come to the (cap) table.

Then there is also the growing disconnect between raising capital and the actual announcement of that fundraise. Founders are trying to remain under stealth for longer periods of time to hide from competitors, and they want to message their news in a careful manner.

All of which means that the Form D filed with the Securities and Exchange Commission when closing an exempt fundraise (aka venture rounds) is no longer as simple a process as it once was.

Lawyers will state publicly that startups should always file their legally mandatory paperwork (that’s probably also a good rule for life). The reality, though, is pretty much the opposite when you talk to startup attorneys in private.

Here’s the secret about Form D filings today: the norms in Silicon Valley have changed, and Form D filings are often filed late, not at all, and many startups are advised to lie low in the hopes of avoiding stricter SEC scrutiny. What was once a fait accompli is now a deliberative process, with important decision points for founders.

Extra Crunch contacted about two dozen startup attorneys, from the biggest firms in the industry to the one-person shops with a shingle out front. Getting straight answers here has been tough, if only because no lawyer really wants to say out loud that they actively recommend their clients violate government regulations (there is that whole law license thing, which apparently lawyers care about).

Practically all of these conversations were done off-the-record and not for attribution, since as one lawyer said, “the last thing I need is the damn SEC sending our firm a nastygram.” Other firms wholly swore us off from even discussing their Form D cultures.

Full disclosure: I am not an attorney, and while I had attorneys read over this draft, this does not constitute legal advice, particularly specific legal advice for your specific startup and situation. Get inspiration from this analysis, but always (really, truly, always) consult qualified legal counsel to answer legal questions about your startup.

With that said, here is our guide to the new world of venture capital securities filings.

SEC pushes court to hold Elon Musk in contempt over Tesla tweets

Tesla CEO Elon Musk is in blatant violation of a settlement agreement reached last year over securities fraud allegations, the U.S. Securities and Exchange Commission said in a biting response to the court that argued the billionaire entrepreneur be held in contempt.

The response, which was filed late Monday, is the latest salvo in the agency’s fight with Musk that was sparked by the now infamous “funding secured” tweet. The SEC filed a complaint in federal district court in September alleging that Musk lied when he tweeted on August 7 that he had “funding secured” for a private takeover of the company at $420 per share.

Musk and Tesla settled with the SEC without admitting wrongdoing. Tesla agreed to pay a $20 million fine; Musk had to agree to step down as Tesla chairman for a period of at least three years; the company had to appoint two independent directors to the board; and Tesla was also told to put in place a way to monitor Musk’s statements to the public about the company, including via Twitter.

It’s that final point about Musk’s use of Twitter that has raised the SEC’s hackles. Last month, the SEC asked a judge to hold Musk in contempt for violating the settlement agreement. The SEC argued that a tweet sent by Musk on February 19 violated their agreement. Musk is supposed to get approval from Tesla’s board before communicating potentially material information to investors.

Musk tweeted Feb. 19 that Tesla would produce “around” 500,000 cars this year, correcting himself hours later to clarify that he meant the company would be producing at an annualized rate of 500,000 vehicles by year end.

The next morning, Tesla announced that its general counsel, Dane Butswinkas, was leaving after just months on the job. Butswinkas said in a statement that he was “grateful for the opportunity” to work with Musk and Tesla and that he plans to return to the Washington, D.C. law firm for which he previously worked 30 years.

The SEC said in this latest response that it was stunned to discover that Musk had not sought pre-approval for a single one his tweets about Tesla.

The Court-ordered pre-approval requirement for Musk’s written communications lies at the heart of the settlement. Musk’s unchecked and misleading tweets about Tesla are what precipitated the SEC’s charges, and the pre-approval requirement was designed to protect against reckless conduct by Musk going forward.

It is therefore stunning to learn that, at the time of filing of the instant motion, Musk had not sought pre-approval for a single one of the numerous tweets about Tesla he published in the months since the Court-ordered pre-approval policy went into effect.

Many of these tweets were about the topics specifically identified by Tesla in its own policies as potentially material to shareholders. Musk reads this Court’s order as not requiring pre-approval unless Musk himself unilaterally decides his planned tweets are material. His interpretation is inconsistent with the plain terms of this Court’s order and renders its pre- approval requirement meaningless.

Musk has argued that the Feb 19 tweet was “immaterial” and complied with the settlement. He also said the SEC’s effort to find him in contempt infringed on the First Amendment and his right to free speech. The SEC has rejected that argument. “Submitting his written statements for pre-approval does not, as Musk baldly asserts, mean that he is prohibited from speaking,” the SEC wrote in its reply to Musk’s order to show cause. 

The SEC told a judge Monday that Musk has regularly published substantive information about Tesla and its business in tweets, beyond the February 19 instance. The SEC pointed to tweets about Tesla vehicle tax credits and pricing, vehicle maintenance costs, plans for expansion of charging stations internationally, the EPA rating of Tesla vehicles, construction and production plans for a new Shanghai factory, and the results of government safety testing of Tesla vehicles as evidence of Musk’s non compliance.

You can read the entire filing here.

The SEC is looking to make it easier for any company to test the IPO waters

Under the leadership of its newest chairman, Jay Clayton, the SEC has for the last two years made it clear that it wants more companies to go public already.

A new proposal, revealed today, may get it closer to that objective. Specifically, the agency has proposed giving any company that’s exploring a potential IPO a chance to explore its plans privately with potential investors — both institutional and accredited — before making any public pronouncements.

It would essentially widen the net to allow every company to “test the waters” before deciding whether or not to move forward with an offering, compared with the companies that are able to test the waters today, which are “emerging growth companies.”

Per the SEC’s definition, an emerging growth company is an issuer with total annual gross revenue of less than $1 billion during its most recently completed fiscal year.

The public now has 60 days to comment on the proposal, after which the SEC will decide whether or not to move forward.

You can pretty much expect that it will. The move follows a series of steps the SEC has taken to shift over to the public market some of the liquidity sloshing around the private market. In July 2017, it made it possible for any company to confidentially submit registration documents related to shares being sold in an IPO, a benefit that only smaller companies had enjoyed previously.

Acknowledging that companies may still choose to stay private longer, Clayton separately said last August that the commission wants to give more small investors access to more privately held companies for their retirement or other needs. He said that changes toward that end could happen “pretty quickly,” though the SEC hasn’t formally revealed any related proposals yet.

Robinhood lacked proper insurance so will change checking & savings feature

Robinhood will rename and revamp its upcoming checking and banking features after encountering problems with its insurance. The company published a blog post this evening explaining “We plan to work closely with regulators as we prepare to launch our cash management program, and we’re revamping our marketing materials, including the name . . . Stay tuned for updates.”

Robinhood’s new high-interest, zero-fee checking and savings feature seemed too good to be true. Users’ money wasn’t slated  to fully protected. The CEO of the Securities Investor Protection Corporation, a nonprofit membership corporation that insures stock brokerages, tells TechCrunch its insurance would not apply to checking and savings accounts the way Robinhood originally claimed. “Robinhood would be buying securities for its account and sharing a portion of the proceeds with their customers, and that’s not what we cover,” says SIPC CEO Stephen Harbeck. “I’ve never seen a single document on this. I haven’t been consulted on this.”

That info directly conflicts with comments from Robinhood’s comms team, which told me yesterday users would be protected because the SIPC insures brokerages and the checking/savings feature is offered via Robinhood’s brokerage that is a member of the SIPC.

If Robinhood checking and savings is indeed ineligible for insurance coverage from the SIPC, and since it doesn’t qualify for FDIC protection like a standard bank, users’ funds would have been at risk. Robinhood co-CEO Baiju Bhatt told me that “Robinhood invests users’ checking and savings money into government-grade assets like U.S. treasuries and we collect yield from those assets and pay that back to customers in the form of 3 percent interest.” But Harbeck tells me that means users would effectively be loaning Robinhood their money, and the SIPC doesn’t cover loans. If a market downturn caused the values of those securities to decline and Robinhood couldn’t cover the losses, the SIPC wouldn’t necessarily help users get their money back. 

Robinhood’s team insisted yesterday that customers would not lose their money in the event that the treasuries in which it invests decline, and that only what users gamble on the stock market would be unprotected, as is standard. But now it appears that because Robinhood is misusing its brokerage classification to operate checking and savings accounts where it says users don’t have to invest in stocks and other securities, SIPC insurance wouldn’t apply. “I have an issue with some of the things on their website about whether these checking and savings accounts would be protected. I referred the issue to the SEC,” Harbeck tells me. TechCrunch got in touch with the SEC, but it declined to comment.

Robinhood planned to start shipping its Mastercard debit cards to customers on December 18th with users being added off the waitlist in January. That may now be delayed due to the insurance problem and it’s announcement that it will change how it works and is positioned.

Robinhood touted how its checking and savings features have no minimum account balance, overdraft fees, foreign transaction fees or card replacement fees. It also has 75,000 free-to-use ATMs in its network, which Bhatt claims is more than the top five U.S. banks combined. And its 3 percent interest rate users earn is much higher than the 0.09 percent average interest rate for traditional savings, and beats  most name-brand banks outside of some credit unions.

But for those perks, users must sacrifice brick-and-mortar bank branches that can help them with troubles, and instead rely on a 24/7 live chat customer support feature from Robinhood. The debit card has Mastercard’s zero-liability protection against fraud, and Robinhood partners with Sutton Bank to issue the card. But it’s unclear how the checking and savings accounts would have been protected against other types of attacks or scams.

Robinhood was likely hoping to build a larger user base on top of its existing 6 million accounts by leveraging software scalability to provide such competitive rates. It planned to be profitable from its margin on the interest from investing users’ money and a revenue-sharing agreement with Mastercard on interchange fees charged to merchants when you swipe your card. But long term, Robinhood may use checking and savings as a wedge into the larger financial services market from which it can launch more lucrative products like loans.

That could fall apart if users are scared to move their checking and savings money to Robinhood. Startups can suddenly fold or make too risky of decisions while chasing growth. Robinhood’s valuation went from $1.3 billion last year to $5.6 billion when it raised $363 million this year. That puts intense pressure on the company to grow to justify that massive valuation. In its rush to break into banking, it may have cut corners on becoming properly insured. It’s wise for the company to be rethinking the plan to ensure it doesn’t leave users exposed or hurt its reputation by launching without adequate protection.

[Update 12/14/2018 9:30pm pacific: This article has been significantly updated to include information about Robinhood planning to change its checking and savings feature before launch to ensure users aren’t in danger or losing their money.]

[DIsclosure: The author of this article knows Robinhood co-founders Baiju Bhatt and Vlad Tenev from college 10 years ago.]

Here is the SEC complaint against Elon Musk and Tesla

The Securities and Exchange Commission lodged a complaint today against Elon Musk and Tesla following tweets sent last month by the CEO involving a planned takeover of the electric car company at $420 a share.

The filing from the Southern District of New York identifies the tweets as “false as misleading,” adding:

Musk’s statements, disseminated via Twitter, falsely indicated that, should he so choose, it was virtually certain that he could take Tesla private at a purchase price that reflected a substantial premium over Tesla stock’s then-current share price, that funding for this multi-billion dollar transaction had been secured, and that the only contingency was a shareholder vote. In truth and in fact, Musk had not even discussed, much less confirmed, key deal terms, including price, with any potential funding source.

In addition to the August 7 “funding secured” statement, the document identifies three additional tweets,

  1.  My hope is *all* current investors remain with Tesla even if we’re private. Would create special purpose fund enabling anyone to stay with Tesla.
  2. Shareholders could either to [sic] sell at 420 or hold shares & go private.”
  3. Investor support is confirmed. Only reason why this is not certain is that it’s contingent on a shareholder vote.

We are awaiting a response from Tesla. The company’s stock price just took a massive dip on the news.