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Indiana Law Journal

Article Title

Taming Unicorns

Document Type

Article

Publication Date

Fall 2022

Publication Citation

97 Indiana Law Journal 1203 (2022)

Abstract

Until recently, most startups that grew to become valuable businesses chose to become public companies. In the last decade, the number of unicorns—private, venture-backed startups valued over one billion dollars—has increased more than tenfold. Some of these unicorns committed misconduct that they successfully concealed for years. The difficulty of trading private company securities facilitates the concealment of misconduct. The opportunity to profit from trading a company’s securities gives short sellers, analysts, and financial journalists incentives to uncover and reveal information about misconduct the company commits. Securities regulation and standard contract provisions restrict the trading of private company securities, which undermines the deterrence of private company misconduct.

This Article proposes a three-pronged plan to encourage trading in private company securities, without compromising investor protection. First, reform section 12(g) of the Exchange Act so that companies are no longer forced to go public when they acquire 2000 accredited investor shareholders. Second, attach a regulatory most-favored-nation clause to private company securities so that companies may not grant the right to resell selectively. Third, require that private companies with tradable securities make limited public disclosures. These reforms would create a new market for trading unicorn securities and strengthen deterrence of unicorn misconduct.

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