|By Jim Bruene on December 1, 2008 7:52 PM | Comments|
No one said it would be easy trying to disrupt a multi-trillion dollar industry. Prosper's latest blow is the cool $1 million it spent to settle what could have been a legal black hole, individual states suing it for securities law violations. Here's today's press release from the NASAA announcing the settlement.
With state securities regulators off its back, Prosper now has two of its three problems settled. Last week it announced a settlement with the SEC (here). Terms were not disclosed.
But there is one major hurdle remaining: potential claims from lenders wanting their money back. Attorney Broox Peterson commented on Prosper's potential legal liability yesterday (here):
Sale of a security that has not been registered under Section 5 of the Securities Act of 1933 gives rise to a private right of action under Section 12(a)1 of that Act. The remedy that can be enforced with this private right of action is rescission of the sale of the unregistered security. In practical terms this means that investors in unregistered Prosper notes that were ultimately uncollectible can get their money back.
If a significant portion of the lenders, who hold an estimated $30+ million in bad debt, successfully sue Prosper for a refund on the grounds they were sold an unregistered security, it could be very expensive for the company. At least one class action suit has been filed against Prosper (The Rosen Law Firm suit filed Nov. 26 ).
Comment: Ultimately, I think the U.S. peer-to-peer lending industry will recover from these legal setbacks. However, the regulatory situation has put a damper on innovation, reduced competition (see note 1), and caused a significant reduction in credit available to consumers via P2P exchanges (see note 2).
Court cases aside, the bigger issue is whether P2P loan losses can be kept to a level that provides a reasonable rate of return for lenders. The jury is still out on that (see note 3).
1. Zopa has now admitted that the reason it did not open a fully peer-to-peer loan market in the U.S. was because it expected this regulatory treatment (post here).
We always took the view that the SEC would likely view our platform, as operated in the UK and Italy, as requiring registration with them. That's the key reason why we didn't launch our UK model in the US...
3. For more info on the market see our Online Banking Report on P2P Lending.
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