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August 23, 2015
David R. Fredrickson, Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, N.E. Washington, DC 20549
Via Web: https://www.sec.gov/forms/corp_fin_noaction
REQUEST FOR “NO-ACTION” LETTER
Re: 1933 Securities Act, Section 2(a)(3) Definition of offer or sale of a security
Dear Mr. Fredrickson:
I am an individual. It is my understanding “An individual or entity who is not certain whether a
particular product, service, or action would constitute a violation of the federal securities law may
request a 'no-action' letter from the SEC staff.” Quoting from http://www.sec.gov/answers/noaction.htm
First, some background and context for my request: I was born in Texas, where violating the letter or
spirit of securities regulations potentially results in a long prison sentence. The Texas State Attorney
General is facing up to life in prison for his minor role in helping a startup like mine raise capital. See:
https://en.wikipedia.org/wiki/Ken_Paxton#Criminal_indictment_for_felony_securities_fraud
Additionally, I have previously submitted two other drafts of this No-Action Letter request, which you
can read online if you do not already have my letters readily available to you in your Commission files:
on August 21, 2015: http://www.slideshare.net/FoodBiome/sec-no-action-letter-request-updated-letter
on September 28, 2014: http://www.slideshare.net/FoodBiome/sec-no-action-letter-request
Additionally, I have previously submitted a Comment Letter regarding Rule 506(c) Rulemaking, here:
http://www.sec.gov/comments/s7-06-13/s70613-587.pdf
Additionally, I have previously submitted Form D to formally commence a “friends and family” round
of seed capital formation for my startup by Rule 506(b). My friends and family are now investing. See:
http://sec.gov/Archives/edgar/data/1593577/000159357713000001/xslFormDX01/primary_doc.xml
I have had several conversations about my No-Action Letter requests with two different members of
your staff, Mike and Zach. I have been told verbally that my proposed course of conduct is completely
acceptable to the Commission and that if I continue my course of conduct that I will be deemed in full
compliance with the letter and the spirit of the new JOBS Act Rules. However, your office has decided
thus far not to issue a No-Action Letter to me. I am being told that the existing Rules text, interpretive
guidance, No-Action Letters issued to others, and jurisprudence establishing precedent and meaning of
federal securities regulations already explicitly authorize me to engage in my present and my proposed
course of conduct when raising seed capital for my startup from the general public under the JOBS Act.
It appears necessary for me to emphasize, based on my telephone discussions with Mike and Zach, that
I'm not trying to change your opinion nor do I wish to spend my time attempting to fit in to your culture
of politics and market regulation, in which you and everyone you are surrounded by daily have nearly
unlimited budgets and no deadlines. I will never exist in your culture of infinite time and money. You
cannot expect me to first join your elite club as a prerequisite to receiving a No-Action Letter from you.
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
Rather than trying to change your opinion by becoming a billionaire and then spreading money around
to lobby or to influence elected representatives, or your SEC office, I believe the only prerequisite that
exists for me to receive a No-Action Letter from you is that I explain why one is required in my case. I
can and will, below, explain very clearly why your existing Rules have created an untenable situation in
which nobody, not even a securities lawyer, can possibly know whether the SEC will deem my course
of conduct to be illegal based on the facts and circumstances. By issuing a No-Action Letter to me you
will make it perfectly clear that a startup, starting with near-zero financial resources, can advertise in
the USA in order to attract non-Accredited persons who wish to receive future correspondence if and
when the startup decides to “offer” securities in which non-Accredited persons are qualified to invest.
Finally, I have personally witnessed every twist and turn of my husband's attempts to comply with your
Rules in order to help a formerly-registered issuer, known as Adia Nutrition, Inc. (CIK 0001160420) in
its turnaround effort after being de-listed from NASDAQ's OTCBB in 2006 and de-registering in 2008.
See: http://www.otcmarkets.com/stock/ADIA/profile
As you may be aware, 3 days before I submitted my Form D to commence my Rule 506(b) Offering in
December 2013 my husband received a notice of an informal inquiry being conducted by the SEC. See:
http://www.pr.com/press-release/532004
Later that month the SEC issued a federal subpoena to my husband. For over 8 months you conducted a
formal federal investigation of him and his startups before issuing a closing Wells Notice in 2014. See:
http://www.slideshare.net/JasonCoombs/closing-letter-from-the-securities-and-exchange-commission
My family has been living in poverty since 2013 as a direct result of our decision to continue to invest,
along with our friends and family, in our important startups. We would have experienced far greater
personal financial prosperity over the last three years if we had instead simply given up on growing our
startups and obtained employment. Despite the financial hardship this has created for us, we steadfastly
refuse to accept any kind of government welfare assistance. We are absolutely certain that our course of
conduct is beyond reproach politically and complies in every possible detail with the letter and with the
spirit of every federal and state regulation. We have decided, as a family, that we would rather suffer in
temporary poverty than be scared off of our present course by the actions or inactions of your political
Commission. We are going to finish what we started, and we will defend ourselves all the way to the
U.S. Supreme Court if necessary to ensure that your Commission and each one of the 50 state securities
regulators do not interfere. We have decided that if you will not issue a No-Action Letter to me, based
on the verbal assurances of your staff that what I am doing does in fact comply with federal securities
regulation and the JOBS Act, that we will if necessary fight any accusation of criminal wrongdoing and
defend ourselves in court if any prosecutor anywhere in the country decides to bring criminal charges
against us for raising capital for our startups. However, I strongly believe that you are obliged to issue a
No-Action Letter to me so that my course of conduct will explicitly be deemed to be lawful nationwide.
If a state securities regulator or a state prosecutor wishes to be able to stop me from raising capital for
my startup in the manner that I outline below, they should be required first to lobby Congress to repeal
or amend the JOBS Act legislation. Then the SEC should delay by three years, unnecessarily, any final
implementation of those revisions to the JOBS Act so that I will still have time to complete my current
course of conduct – to do otherwise would be outrageous class warfare and systemic corruption. If the
SEC promptly enacts revisions to federal securities regulations that are adverse to the poor and startups
but intentionally interferes with and unnecessarily delays by three years the implementation of JOBS
Act-type legislation that is beneficial to the poor and startups, I think everyone agrees such a disparity
in conduct by your Commission would be very dangerous and may put our nation at risk of civil war.
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
Therefore, I am writing to you today to request a No-Action Letter confirming that my co-founders, my
company and I possess the legal right to engage in pre-Offering “testing the waters” communications,
specifically the solicitation of “Expressions of Interest” (EOI) from members of the general public. My
No-Action Letter request does not reference Securities Act Section 5, as no “offer” of securities to the
general public is being proposed and no such “offer” of securities will be carried out prior to the date of
effectiveness of either, a) a registration statement filed for the subject securities or, b) a “crowdfunding”
Rule other than Regulation D Rule 506(c) which permits my startup to offer and to sell securities to
members of the general public who are not “Accredited” as defined by Rule 501 of Regulation D.
My husband has been very clear in his Rulemaking Comment Letters that he and other professionals in
the forensics and securities industries firmly believe that your Rule 506(c) expressly authorizes already,
as of its date of effectiveness on September 23, 2013, any type of crowdfunding that I wish to conduct
in any place in the United States or any place in cyberspace where U.S. Federal Law is applicable, on
the condition that the investors who invest are verified (using “reasonable steps” of verification) to be
“Accredited” investors. Rule 506(c) is “crowdfunding” for “Accredited” investors only, and it is an
abomination. I am personally offended by the existence of “Accredited” investor-only “crowdfunding”
which helps the wealthy people of the world buy the only securities that have the potential to create
new wealth, while preventing poor people from buying the same securities. Also I know from extensive
experience that “Accredited” investors will never invest in anything I wish to do. It is impossible for
me to locate an “Accredited” investor who will invest in my startup, no matter how much time and
money I spend to attempt to reach out to such investors. “Accredited” investors will not invest in my
startup because I do not come from wealth. As you probably know, “Accredited” investors only invest
in startups created by people who were born to wealthy families. I do not expect this will change soon
but I do expect that this will change. In fact I demand that it change. The 99% of Americans who don't
qualify as “Accredited” demand that it change. Congress and the Executive branch ordered the SEC to
enact new Rules to allow non-Accredited investors to invest in startups, and for the express purpose of
helping us to slowly restore economic and social justice to the entire nation which today is shaped and
characterized by economic and social inequality and injustice. So far you have failed to help us do so!
Now then, as discussed above, as part of my present course of conduct for raising my seed capital, I am
engaged in an ongoing Rule 506(b) Offering limited to my friends and family people with whom I have
a substantive pre-existing relationship. I know what “substantive” and “pre-existing” and “relationship”
mean, and so do you. My method of verification that I have such a legal standing relative to my friends
and family investors is beyond question. I remind you however, that in the recent No-Action Letter that
you personally signed on August 6, 2015 you granted “Citizen VC, Inc.” the support they requested for
their proposed course of conduct in which “sophisticated” investors who demonstrate to the satisfaction
of CVC that particular unregistered securities are suitable for them and that they understand the risk of
investing in startups as “citizen venture capitalists” and that they have the financial ability to invest a
minimum of $50,000.00 will be allowed to invest through the Citizen.VC website even though many of
these investors will obviously not meet the “Accredited” investor requirements, because if they did any
person who has common sense can see that Rule 506(c) would already allow CVC to accept money
from those investors without limitations on general solicitation or general advertising in the process!
See: https://www.sec.gov/divisions/corpfin/cf-noaction/2015/citizen-vc-inc-080615-502.htm
It is well-known in the securities industry and among the backers of startups in America, including the
securities lawyers my family has been advised by in the past and the startup incubators and experts in
startups we are familiar with, that Rule 506(b) allows self-certification of “Accredited” status even now
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
under the new JOBS Act regulatory regime. Your recent No-Action Letter to CVC formally endorses in
explicit terms this interpretation, in a way that no prior No-Action Letter nor interpretive guidance has
done to my knowledge. You have just opened the door for people who are not “Accredited” but who are
willing to claim to be “Accredited” to become members of a members-only investing App or website
and, provided that the persons doing the offers and sales of securities therein are registered in every
way that investment advisers must be registered when doing business with the general public, to invest
without restriction a sum of money equal to the median annual household income in America. You have
granted CVC explicit permission to rely on their membership qualification process and their own
subjective judgment and the subjective judgment of their affiliated registered investment advisers who
will be the “managers” of each Special Purpose Vehicle (SPV) to decide who is qualified to invest as
members (the “citizen venture capitalists”) and thereby to form capital for groups of private issuers.
I sincerely believe that you cannot issue such a No-Action Letter to CVC but refuse to issue one to me.
When offering to sell my securities to my friends and family under Regulation D Rule 506(b) it is my
intent to offer and sell, and I have already sold, my unregistered securities to non-Accredited investors.
Every single one of my friends and family are non-Accredited. Although I understand that I have the
right to offer and to sell securities to “Accredited” investors also under Rule 506(b) and even to offer
and sell to wealthy investors with whom I do not have any “pre-existing substantive relationship,” my
intent is to never accept capital from anyone who is “Accredited” because one of my goals in this entire
endeavor, one of the primary reasons I am raising capital for a startup at great cost and hardship to me
and to my family, is to create new wealth in the world, not use my life to help people who are already
wealthy become even more so. I am not trying to raise millions of dollars from investors. I do not need
to accept capital from “Accredited” investors in order to raise all the capital that I will need to be able
to produce substantial wealth for my non-Accredited investors when my good business judgment, my
hard work, skill and dedication result in success creating products and services that customers desire.
You should thus immediately comprehend that my only reason for proposing to conduct a Rule 506(c)
Offering is to circumvent the 1933 Securities Act's unconstitutional prohibition on general solicitation
and general advertising of my unregistered securities while benefiting from the regulatory-compliance
protection that it provides which prohibits state securities regulators from harassing me or threatening
me or prosecuting me for the crime of speaking publicly about my startup. I do not have the financial
ability to register my securities with the SEC nor with any state securities regulator, and I will not lend
financial nor political support to previous securities regulations promulgated unconstitutionally from
the unconstitutional 1933 Securities Act. Your Commission is guilty, as you know, of creating (on
purpose and by design) the systemic corruption that the JOBS Act legislation attempts to reform. The
SEC has also purposefully interfered with the implementation of the JOBS Act legislation in order to
prohibit me, and anyone similarly-situated, from enjoying the same freedom to speak and freedom to
form new associations in public guaranteed by the First Amendment of the U.S. Constitution as anyone
else has already if they are financially-able, and also politically-willing, to register their securities.
Furthermore, I am attempting to raise an amount of seed capital smaller than the cost of preparing the
required documents and applying for qualification under the new Regulation A+. I am planning to raise
only $10,000.00 in my 506(b) Offering – so to protect the value of this small investment being made by
my friends and family I simply refuse to give any of that money to any regulatory compliance nonsense
required by the SEC. Fortunately, I don't need to because the JOBS Act explicitly legalized my general
solicitation and general advertising, when non-Accredited persons can't invest, pursuant to Rule 506(c).
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
Obviously I'm not obligated to accept capital from any investor merely by virtue of having advertised
and generally solicited under your Rule 506(c) and also it should be immediately apparent to you, and
should have been long before the JOBS Act was enacted, that Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances. Thus the SEC never had authority to bar startup advertising.
Congress is constitutionally prohibited from granting the SEC authority to abridge my freedom of
speech. Under Rule 506(c) therefore I am now, and I intend to continue, generally soliciting and
generally advertising my unregistered securities. This technically constitutes an “offer” to sell securities
to “Accredited” investors only, but I do not intend to accept money from anyone who is “Accredited”
and I do not believe any such person would ever invest in my startup, anyway, so if I must formally
“offer” my unregistered securities to the very people who have caused systemic corruption and who
have committed vile acts of racist class warfare for their own self-enrichment at the expense of others
in order to be eligible for federal securities law protection then I will make such “offers” pursuant to
Rule 506(c) but that will not change the fact or circumstance that my reason for doing so has nothing to
do with actually expecting any such “Accredited” person ever to invest in my unregistered securities.
The end result of my Rule 506(c) general solicitations and general advertising will thus be, guaranteed,
nothing more than a list of contact information provided to me by non-Accredited natural persons. Any
person who contacts me who confirms they are not “Accredited” will be added to my “Expressions of
Interest” (EOI) contact database but I will inform such persons that they are not eligible to invest in my
startup because they're not members of the wealthy 1% – under Rule 506(c) they are deemed unworthy.
I will do my best to explain to each of these people that Congress and the SEC consider them to be low
class, unprivileged people who are not worthy of wealth-building opportunity in the economy because
they are not already wealthy. I intend to share with every non-Accredited person who responds to my
general solicitation and general advertising the facts of the history of the SEC and the unconstitutional
1933 Securities Act and the malicious self-serving behavior of the SEC and its Commissioners. I intend
to direct attention to the systemic fraud and the corruption still present within your organization and in
the U.S. government, with this Rule 506(c) Offering as my means of doing so. My motivation therefore
is as much political activism to educate the people whose rights are being infringed by the existence of
unconstitutional securities regulations (both state and federal) as it is making any “offer” of securities,
first to the “Accredited” investors who are eligible to invest under Rule 506(c), and also later to “offer”
my securities to those non-Accredited investors when they are eligible to invest under the JOBS Act.
Your final Rulemaking pursuant to Title III of the JOBS Act will authorize me, my co-founders and my
company to offer and sell unregistered securities to members of the general public on the condition that
all “offers” and “sales” thereof occur by way of a registered “funding portal” and comply with the
Commission's new Crowdfunding exemption, which will preempt state registration requirements. See:
http://www.sec.gov/comments/s7-09-13/s70913.shtml
http://www.gpo.gov/fdsys/pkg/FR-2013-11-05/pdf/2013-25355.pdf
http://www.sec.gov/rules/proposed/2013/33-9470.pdf
Your final Rulemaking pursuant to Title IV of the JOBS Act has authorized me, my co-founders or my
company to offer and sell unregistered securities to members of the general public on the condition that
such persons are “qualified purchasers” as will be interpreted by a pending appellate court case brought
by the securities regulators for the states of Massachusetts and Montana. As the Commission is aware,
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
you have proposed to define “qualified purchasers” to mean “all offerees of securities in a Regulation A
offering and all purchasers in a Tier 2 offering” however the DC court may redefine qualified purchaser
more narrowly, so as to not permit sales to certain unsophisticated members of the general public. See:
http://www.sec.gov/comments/s7-11-13/s71113.shtml
http://www.gpo.gov/fdsys/pkg/FR-2014-01-23/pdf/2013-30508.pdf
http://www.sec.gov/rules/proposed/2013/33-9497.pdf
http://www.scribd.com/doc/266635580/Galvin-v-sec-US-Court-of-Appeals
Under the new Code of Federal Regulations section 230.255, “solicitation of interest” documents or
materials are permitted in advance of a planned Regulation A Offering, on condition that the so-called
“testing the waters” solicitation materials are provided to the Commission at the time of application for
qualification. They must also contain a required legend/disclaimer as detailed in Section 230.255. See:
http://www.sec.gov/rules/final/2015/33-9741.pdf
As stated explicitly in the new Section 230.255 – “Such communications are deemed to be an offer of a
security for sale for purposes of the antifraud provisions of the federal securities laws.” My proposed
EOI communications will “test the waters” in general, attracting non-Accredited investors to whom no
securities are being offered because for example the securities being advertised pursuant to Rule 506(c)
are not being offered to non-Accredited purchasers. In the alternative, my EOI materials might not be
disseminated as part of any Rule 506(c) Offering general advertising. In such form my EOI advertising
materials may not contain any information about price, valuation, forecasts of future performance, nor
convey any representation as to past performance and investment outcomes for any previous investors
in other Offerings that anyone associated with my company, myself or my co-founders participated. I
do not believe I am required to engage in the charade of cloaking my solicitations to non-Accredited
investors in the Regulation D Rule 506(c) registration-exempt “safe harbor” merely to ask members of
the general public to send me their contact information if they might be interested in receiving future
notifications from me. Asking to be added to my mailing list cannot possibly be deemed by securities
regulators to constitute illegal “offers” nor “solicitations of offers to buy” as your office at the SEC has
previously implied with your corrupt Rulemaking and your intentionally-misleading interpretive
guidance. Under the new Rule 506(c) and in the spirit of the JOBS Act legislation taken as a whole,
you can no longer deceive me into believing that I cannot advertise without federal or state regulatory
enforcement action being brought against me, or worse, a risk of being charged criminally in Texas.
For example, my Rule 506(c) Offering materials might communicate words to the effect of “This is an
Offering intended for Accredited investors only. If you are not a qualified Accredited investor but wish
to submit an Expression of Interest anyway to be contacted directly in the future if another public offer
is made to non-Accredited investors, please call or click to provide your contact details.” Clearly the
Commission should issue a “No-Action Letter” to me to clarify that “soliciting” such EOI represents a
mechanism of pre-Offering public communications permissible under the new JOBS Act Rules. Even if
I do not make “offers” to “Accredited” investors as part of my advertising materials, since as a matter
of fact the only reason I would even bother to communicate “Offering” materials under Rule 506(c) is
to attempt to trick “Accredited” investors into wasting their time and money talking with me, so that
maybe they will miss an opportunity to do something else during that same time that would have made
them even wealthier than they already are if not for having wasted their time talking to me, it is my
understanding and belief that my general solicitation and general advertising is automatically covered
by Regulation D Rule 506(c) because, as you know, presently there is no requirement for filing of any
Form D in advance of commencing a Rule 506(c) Offering. I am already permitted to advertise in any
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
way I wish, and to generally solicit investment capital in public, and provided that I comply with the
“reasonable steps” requirement of Rule 506(c) when selling my securities to “Accredited” investors. As
you know also, failure to file a Form D does not render my Rule 506(c) Offering ineligible for the safe
harbors and the registration exemption provided by the Rule!
The SEC has proposed to implement a filing requirement for Form D in a revision to Rule 506(c) and if
a filing requirement were to be enacted by Rulemaking, or if my Rule 506(c) “Offering” materials are
required to be filed in advance of first use in revised 506(c), then of course I would file such documents
or forms with the SEC in advance of my general solicitation and general advertising and in that case I
would not continue advertising my EOI independent of my Rule 506(c) “Offering” materials unless
your office issues the No-Action Letter that I am requesting. This hypothetical will help you appreciate
my current and proposed course of conduct, because if you do not issue a No-Action Letter to me then I
will conscientiously cloak my general solicitation and general advertising which seeks only to attract
those non-Accredited investors, whom I am willing to work to help financially in their economic and
class war against the “Accredited” wealthy elite, in the facade of a Rule 506(c) Offering in order to
gain the legal protections that such an Offering affords to me, including the ability to preempt state
securities regulators nationwide at no cost to me or my investors. However, if you do issue a No-Action
Letter to me then I may not go through those motions because I believe your No-Action Letter would
provide me with the same cost-free preemption of state securities regulations which unconstitutionally
prohibit me from engaging freely in general solicitation and general advertising as I “test the waters” to
attract non-Accredited investors who may wish to become my backers in the future when and if I join a
Title III funding portal, relocate my startup to a state that offers an in-state crowdfunding exemption, or
register my securities under federal or state securities law in order to lawfully “offer” and “sell” them to
members of the general public who are the non-Accredited people for whom I wish to produce wealth.
It is my belief the Commission cannot prohibit me, my co-founders nor my company from soliciting
the general public seeking “Expressions of Interest” (EOI) prior to commencing either a JOBS Act Title
III or Title IV public Offering because, by definition, under Section 2(a)(3) of the Securities Act such
EOI solicitations are not “offers” of any security to offerees. Similarly, it is my belief that it was not the
intent of Congress nor the Commission to create uncertainty as to whether persons who contact issuers
in response to Rule 506(c) general solicitation/general advertising materials but who are not Accredited
persons are legally permitted to request a future direct Offering of securities. It is no longer useful, nor
correct, to presume all public communications with potential investors automatically constitute “offers”
of securities for purposes of anti-fraud provisions of securities laws. In the case of general Expressions
of Interest from non-Accredited investors who are not eligible to invest in a Rule 506(c) Offering, or
when no Offering of any kind is yet being made to anybody but a future Offering might occur, the new
Rules are just not clear. I strongly urge the Commission to confirm I have the right to receive such EOI.
I have reviewed the previously-issued No-Action Letters under Section 2(a)(3) and it seems clear to me
from this and my other analysis that the Commission should concur that there is in fact no “offer” of
securities being made in the circumstance I am describing. My proposed actions should not prompt the
Commission to recommend enforcement action against me, my co-founders or my company when we
solicit EOI from members of the general public prior to commencing a new JOBS Act public Offering.
My proposed pre-Offering EOI communications enable follow-ups with interested parties in the future,
after the final JOBS Act Title III Rule becomes effective, when my “offers” of unregistered securities to
non-Accredited investors are allowed irrespective of the offerees' sophistication or qualification. In the
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
alternative, my proposed pre-Offering EOI communications can enable direct advertising to potential
purchasers who have expressed interest in purchasing securities when and if an “offer” can lawfully be
made to them in a direct public offering, such as after a new registration statement filing is in effect.
My proposed EOI communications are not a Rule 135 notice of proposed registered Offering, however,
because I don't intend to file a registration statement unless the SEC fails to enact any further JOBS Act
Rule which will permit offers and sales to non-Accredited investors. Rather, I hope only to receive EOI
responses from members of the general public who wish to inform me that they might be interested in a
future offer of my unregistered securities when my offers are permitted under the final JOBS Act Rules.
I respectfully request that the Commission verify, in the “No-Action Letter” that it issues to me, that the
Rule 155 safe harbor is still applicable to JOBS Act “private” Offerings of unregistered securities and
further that I am authorized to switch from gathering these EOI for my future Offering of unregistered
securities to direct marketing of a proposed registered Offering in compliance with Rule 135. See:
https://www.sec.gov/rules/final/33-7943.htm
My proposed EOI communications are also not, strictly-speaking, “testing the waters” communications
as defined by current Code of Federal Regulations under Section 230.255, because those Regulation A
“solicitation of interest” documents or materials apply only to a proposed Regulation A Offering. My
company does not intend to conduct a Regulation A Offering, so “testing the waters” with “solicitation
of interest” documents or materials pursuant to Section 230.255 would be inappropriate. Although it is
possible that we will decide to conduct a Regulation A+ Offering under Title IV of the JOBS Act, my
proposed EOI communications are not meant to commence the selling process for such an Offering.
Under Regulation D Rule 506(c) there is no requirement of any kind for disclaimers or legends as
required of “testing the waters” in Regulation A. I'm already authorized to publicize anything I wish,
without referencing Rule 506(c), provided that I do not sell unregistered securities to non-Accredited
investors. I can generally solicit and generally advertise my unregistered securities and receive contacts
from people who aren't Accredited persons without violating Securities Act Section 5, and also without
complying with Section 230.255. However, absent a No-Action Letter I must presume non-Accredited
contact information received in reply to Rule 506(c) advertising efforts must be deleted. Thus I will
need to start over with Section 230.255-, or Rule 135-, or Title III-compliant funding portal advertising
efforts later. Worse, I must self-regulate to block subsequent sales under Title III or Title IV to anyone
who made the mistake of responding to my 506(c) advertising, otherwise my general solicitation
directly results in subsequent sales to non-Accredited persons. I clearly need a No-Action Letter
affirming my Rule 506(c) communications to and with the general public are not “offers” as defined by
Section 2(a)(3) with respect to non-Accredited persons due to the fact they are not eligible to invest.
In education it is often said that standardized testing cannot measure anything beautiful or complex. I
firmly believe that life, all life including human life and plant life and the life of microbes, and even
political life, is beautiful and complex. Your Commission's refusal to acknowledge that my life, and my
startup, and my reasons for seeking to communicate with members of the general public and to form
new associations or seek a redress of my grievances against my government, is beautiful and complex
will be a material harm, not only to me but to every other person who will ever live as we each face
your “standardized testing” of wealth being used as a proxy for eligibility for access to freedom.
Thank you for your prompt reply. Please reply in writing if you aren't issuing a No-Action Letter to me.
Emily Coombs (Co-Founder of FoodBiome.com)
P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com

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SEC No Action Letter Request to David R. Fredrickson, Chief Counsel

  • 1. August 23, 2015 David R. Fredrickson, Chief Counsel Division of Corporation Finance U.S. Securities and Exchange Commission 100 F Street, N.E. Washington, DC 20549 Via Web: https://www.sec.gov/forms/corp_fin_noaction REQUEST FOR “NO-ACTION” LETTER Re: 1933 Securities Act, Section 2(a)(3) Definition of offer or sale of a security Dear Mr. Fredrickson: I am an individual. It is my understanding “An individual or entity who is not certain whether a particular product, service, or action would constitute a violation of the federal securities law may request a 'no-action' letter from the SEC staff.” Quoting from http://www.sec.gov/answers/noaction.htm First, some background and context for my request: I was born in Texas, where violating the letter or spirit of securities regulations potentially results in a long prison sentence. The Texas State Attorney General is facing up to life in prison for his minor role in helping a startup like mine raise capital. See: https://en.wikipedia.org/wiki/Ken_Paxton#Criminal_indictment_for_felony_securities_fraud Additionally, I have previously submitted two other drafts of this No-Action Letter request, which you can read online if you do not already have my letters readily available to you in your Commission files: on August 21, 2015: http://www.slideshare.net/FoodBiome/sec-no-action-letter-request-updated-letter on September 28, 2014: http://www.slideshare.net/FoodBiome/sec-no-action-letter-request Additionally, I have previously submitted a Comment Letter regarding Rule 506(c) Rulemaking, here: http://www.sec.gov/comments/s7-06-13/s70613-587.pdf Additionally, I have previously submitted Form D to formally commence a “friends and family” round of seed capital formation for my startup by Rule 506(b). My friends and family are now investing. See: http://sec.gov/Archives/edgar/data/1593577/000159357713000001/xslFormDX01/primary_doc.xml I have had several conversations about my No-Action Letter requests with two different members of your staff, Mike and Zach. I have been told verbally that my proposed course of conduct is completely acceptable to the Commission and that if I continue my course of conduct that I will be deemed in full compliance with the letter and the spirit of the new JOBS Act Rules. However, your office has decided thus far not to issue a No-Action Letter to me. I am being told that the existing Rules text, interpretive guidance, No-Action Letters issued to others, and jurisprudence establishing precedent and meaning of federal securities regulations already explicitly authorize me to engage in my present and my proposed course of conduct when raising seed capital for my startup from the general public under the JOBS Act. It appears necessary for me to emphasize, based on my telephone discussions with Mike and Zach, that I'm not trying to change your opinion nor do I wish to spend my time attempting to fit in to your culture of politics and market regulation, in which you and everyone you are surrounded by daily have nearly unlimited budgets and no deadlines. I will never exist in your culture of infinite time and money. You cannot expect me to first join your elite club as a prerequisite to receiving a No-Action Letter from you. P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
  • 2. Rather than trying to change your opinion by becoming a billionaire and then spreading money around to lobby or to influence elected representatives, or your SEC office, I believe the only prerequisite that exists for me to receive a No-Action Letter from you is that I explain why one is required in my case. I can and will, below, explain very clearly why your existing Rules have created an untenable situation in which nobody, not even a securities lawyer, can possibly know whether the SEC will deem my course of conduct to be illegal based on the facts and circumstances. By issuing a No-Action Letter to me you will make it perfectly clear that a startup, starting with near-zero financial resources, can advertise in the USA in order to attract non-Accredited persons who wish to receive future correspondence if and when the startup decides to “offer” securities in which non-Accredited persons are qualified to invest. Finally, I have personally witnessed every twist and turn of my husband's attempts to comply with your Rules in order to help a formerly-registered issuer, known as Adia Nutrition, Inc. (CIK 0001160420) in its turnaround effort after being de-listed from NASDAQ's OTCBB in 2006 and de-registering in 2008. See: http://www.otcmarkets.com/stock/ADIA/profile As you may be aware, 3 days before I submitted my Form D to commence my Rule 506(b) Offering in December 2013 my husband received a notice of an informal inquiry being conducted by the SEC. See: http://www.pr.com/press-release/532004 Later that month the SEC issued a federal subpoena to my husband. For over 8 months you conducted a formal federal investigation of him and his startups before issuing a closing Wells Notice in 2014. See: http://www.slideshare.net/JasonCoombs/closing-letter-from-the-securities-and-exchange-commission My family has been living in poverty since 2013 as a direct result of our decision to continue to invest, along with our friends and family, in our important startups. We would have experienced far greater personal financial prosperity over the last three years if we had instead simply given up on growing our startups and obtained employment. Despite the financial hardship this has created for us, we steadfastly refuse to accept any kind of government welfare assistance. We are absolutely certain that our course of conduct is beyond reproach politically and complies in every possible detail with the letter and with the spirit of every federal and state regulation. We have decided, as a family, that we would rather suffer in temporary poverty than be scared off of our present course by the actions or inactions of your political Commission. We are going to finish what we started, and we will defend ourselves all the way to the U.S. Supreme Court if necessary to ensure that your Commission and each one of the 50 state securities regulators do not interfere. We have decided that if you will not issue a No-Action Letter to me, based on the verbal assurances of your staff that what I am doing does in fact comply with federal securities regulation and the JOBS Act, that we will if necessary fight any accusation of criminal wrongdoing and defend ourselves in court if any prosecutor anywhere in the country decides to bring criminal charges against us for raising capital for our startups. However, I strongly believe that you are obliged to issue a No-Action Letter to me so that my course of conduct will explicitly be deemed to be lawful nationwide. If a state securities regulator or a state prosecutor wishes to be able to stop me from raising capital for my startup in the manner that I outline below, they should be required first to lobby Congress to repeal or amend the JOBS Act legislation. Then the SEC should delay by three years, unnecessarily, any final implementation of those revisions to the JOBS Act so that I will still have time to complete my current course of conduct – to do otherwise would be outrageous class warfare and systemic corruption. If the SEC promptly enacts revisions to federal securities regulations that are adverse to the poor and startups but intentionally interferes with and unnecessarily delays by three years the implementation of JOBS Act-type legislation that is beneficial to the poor and startups, I think everyone agrees such a disparity in conduct by your Commission would be very dangerous and may put our nation at risk of civil war. P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
  • 3. Therefore, I am writing to you today to request a No-Action Letter confirming that my co-founders, my company and I possess the legal right to engage in pre-Offering “testing the waters” communications, specifically the solicitation of “Expressions of Interest” (EOI) from members of the general public. My No-Action Letter request does not reference Securities Act Section 5, as no “offer” of securities to the general public is being proposed and no such “offer” of securities will be carried out prior to the date of effectiveness of either, a) a registration statement filed for the subject securities or, b) a “crowdfunding” Rule other than Regulation D Rule 506(c) which permits my startup to offer and to sell securities to members of the general public who are not “Accredited” as defined by Rule 501 of Regulation D. My husband has been very clear in his Rulemaking Comment Letters that he and other professionals in the forensics and securities industries firmly believe that your Rule 506(c) expressly authorizes already, as of its date of effectiveness on September 23, 2013, any type of crowdfunding that I wish to conduct in any place in the United States or any place in cyberspace where U.S. Federal Law is applicable, on the condition that the investors who invest are verified (using “reasonable steps” of verification) to be “Accredited” investors. Rule 506(c) is “crowdfunding” for “Accredited” investors only, and it is an abomination. I am personally offended by the existence of “Accredited” investor-only “crowdfunding” which helps the wealthy people of the world buy the only securities that have the potential to create new wealth, while preventing poor people from buying the same securities. Also I know from extensive experience that “Accredited” investors will never invest in anything I wish to do. It is impossible for me to locate an “Accredited” investor who will invest in my startup, no matter how much time and money I spend to attempt to reach out to such investors. “Accredited” investors will not invest in my startup because I do not come from wealth. As you probably know, “Accredited” investors only invest in startups created by people who were born to wealthy families. I do not expect this will change soon but I do expect that this will change. In fact I demand that it change. The 99% of Americans who don't qualify as “Accredited” demand that it change. Congress and the Executive branch ordered the SEC to enact new Rules to allow non-Accredited investors to invest in startups, and for the express purpose of helping us to slowly restore economic and social justice to the entire nation which today is shaped and characterized by economic and social inequality and injustice. So far you have failed to help us do so! Now then, as discussed above, as part of my present course of conduct for raising my seed capital, I am engaged in an ongoing Rule 506(b) Offering limited to my friends and family people with whom I have a substantive pre-existing relationship. I know what “substantive” and “pre-existing” and “relationship” mean, and so do you. My method of verification that I have such a legal standing relative to my friends and family investors is beyond question. I remind you however, that in the recent No-Action Letter that you personally signed on August 6, 2015 you granted “Citizen VC, Inc.” the support they requested for their proposed course of conduct in which “sophisticated” investors who demonstrate to the satisfaction of CVC that particular unregistered securities are suitable for them and that they understand the risk of investing in startups as “citizen venture capitalists” and that they have the financial ability to invest a minimum of $50,000.00 will be allowed to invest through the Citizen.VC website even though many of these investors will obviously not meet the “Accredited” investor requirements, because if they did any person who has common sense can see that Rule 506(c) would already allow CVC to accept money from those investors without limitations on general solicitation or general advertising in the process! See: https://www.sec.gov/divisions/corpfin/cf-noaction/2015/citizen-vc-inc-080615-502.htm It is well-known in the securities industry and among the backers of startups in America, including the securities lawyers my family has been advised by in the past and the startup incubators and experts in startups we are familiar with, that Rule 506(b) allows self-certification of “Accredited” status even now P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
  • 4. under the new JOBS Act regulatory regime. Your recent No-Action Letter to CVC formally endorses in explicit terms this interpretation, in a way that no prior No-Action Letter nor interpretive guidance has done to my knowledge. You have just opened the door for people who are not “Accredited” but who are willing to claim to be “Accredited” to become members of a members-only investing App or website and, provided that the persons doing the offers and sales of securities therein are registered in every way that investment advisers must be registered when doing business with the general public, to invest without restriction a sum of money equal to the median annual household income in America. You have granted CVC explicit permission to rely on their membership qualification process and their own subjective judgment and the subjective judgment of their affiliated registered investment advisers who will be the “managers” of each Special Purpose Vehicle (SPV) to decide who is qualified to invest as members (the “citizen venture capitalists”) and thereby to form capital for groups of private issuers. I sincerely believe that you cannot issue such a No-Action Letter to CVC but refuse to issue one to me. When offering to sell my securities to my friends and family under Regulation D Rule 506(b) it is my intent to offer and sell, and I have already sold, my unregistered securities to non-Accredited investors. Every single one of my friends and family are non-Accredited. Although I understand that I have the right to offer and to sell securities to “Accredited” investors also under Rule 506(b) and even to offer and sell to wealthy investors with whom I do not have any “pre-existing substantive relationship,” my intent is to never accept capital from anyone who is “Accredited” because one of my goals in this entire endeavor, one of the primary reasons I am raising capital for a startup at great cost and hardship to me and to my family, is to create new wealth in the world, not use my life to help people who are already wealthy become even more so. I am not trying to raise millions of dollars from investors. I do not need to accept capital from “Accredited” investors in order to raise all the capital that I will need to be able to produce substantial wealth for my non-Accredited investors when my good business judgment, my hard work, skill and dedication result in success creating products and services that customers desire. You should thus immediately comprehend that my only reason for proposing to conduct a Rule 506(c) Offering is to circumvent the 1933 Securities Act's unconstitutional prohibition on general solicitation and general advertising of my unregistered securities while benefiting from the regulatory-compliance protection that it provides which prohibits state securities regulators from harassing me or threatening me or prosecuting me for the crime of speaking publicly about my startup. I do not have the financial ability to register my securities with the SEC nor with any state securities regulator, and I will not lend financial nor political support to previous securities regulations promulgated unconstitutionally from the unconstitutional 1933 Securities Act. Your Commission is guilty, as you know, of creating (on purpose and by design) the systemic corruption that the JOBS Act legislation attempts to reform. The SEC has also purposefully interfered with the implementation of the JOBS Act legislation in order to prohibit me, and anyone similarly-situated, from enjoying the same freedom to speak and freedom to form new associations in public guaranteed by the First Amendment of the U.S. Constitution as anyone else has already if they are financially-able, and also politically-willing, to register their securities. Furthermore, I am attempting to raise an amount of seed capital smaller than the cost of preparing the required documents and applying for qualification under the new Regulation A+. I am planning to raise only $10,000.00 in my 506(b) Offering – so to protect the value of this small investment being made by my friends and family I simply refuse to give any of that money to any regulatory compliance nonsense required by the SEC. Fortunately, I don't need to because the JOBS Act explicitly legalized my general solicitation and general advertising, when non-Accredited persons can't invest, pursuant to Rule 506(c). P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
  • 5. Obviously I'm not obligated to accept capital from any investor merely by virtue of having advertised and generally solicited under your Rule 506(c) and also it should be immediately apparent to you, and should have been long before the JOBS Act was enacted, that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Thus the SEC never had authority to bar startup advertising. Congress is constitutionally prohibited from granting the SEC authority to abridge my freedom of speech. Under Rule 506(c) therefore I am now, and I intend to continue, generally soliciting and generally advertising my unregistered securities. This technically constitutes an “offer” to sell securities to “Accredited” investors only, but I do not intend to accept money from anyone who is “Accredited” and I do not believe any such person would ever invest in my startup, anyway, so if I must formally “offer” my unregistered securities to the very people who have caused systemic corruption and who have committed vile acts of racist class warfare for their own self-enrichment at the expense of others in order to be eligible for federal securities law protection then I will make such “offers” pursuant to Rule 506(c) but that will not change the fact or circumstance that my reason for doing so has nothing to do with actually expecting any such “Accredited” person ever to invest in my unregistered securities. The end result of my Rule 506(c) general solicitations and general advertising will thus be, guaranteed, nothing more than a list of contact information provided to me by non-Accredited natural persons. Any person who contacts me who confirms they are not “Accredited” will be added to my “Expressions of Interest” (EOI) contact database but I will inform such persons that they are not eligible to invest in my startup because they're not members of the wealthy 1% – under Rule 506(c) they are deemed unworthy. I will do my best to explain to each of these people that Congress and the SEC consider them to be low class, unprivileged people who are not worthy of wealth-building opportunity in the economy because they are not already wealthy. I intend to share with every non-Accredited person who responds to my general solicitation and general advertising the facts of the history of the SEC and the unconstitutional 1933 Securities Act and the malicious self-serving behavior of the SEC and its Commissioners. I intend to direct attention to the systemic fraud and the corruption still present within your organization and in the U.S. government, with this Rule 506(c) Offering as my means of doing so. My motivation therefore is as much political activism to educate the people whose rights are being infringed by the existence of unconstitutional securities regulations (both state and federal) as it is making any “offer” of securities, first to the “Accredited” investors who are eligible to invest under Rule 506(c), and also later to “offer” my securities to those non-Accredited investors when they are eligible to invest under the JOBS Act. Your final Rulemaking pursuant to Title III of the JOBS Act will authorize me, my co-founders and my company to offer and sell unregistered securities to members of the general public on the condition that all “offers” and “sales” thereof occur by way of a registered “funding portal” and comply with the Commission's new Crowdfunding exemption, which will preempt state registration requirements. See: http://www.sec.gov/comments/s7-09-13/s70913.shtml http://www.gpo.gov/fdsys/pkg/FR-2013-11-05/pdf/2013-25355.pdf http://www.sec.gov/rules/proposed/2013/33-9470.pdf Your final Rulemaking pursuant to Title IV of the JOBS Act has authorized me, my co-founders or my company to offer and sell unregistered securities to members of the general public on the condition that such persons are “qualified purchasers” as will be interpreted by a pending appellate court case brought by the securities regulators for the states of Massachusetts and Montana. As the Commission is aware, P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
  • 6. you have proposed to define “qualified purchasers” to mean “all offerees of securities in a Regulation A offering and all purchasers in a Tier 2 offering” however the DC court may redefine qualified purchaser more narrowly, so as to not permit sales to certain unsophisticated members of the general public. See: http://www.sec.gov/comments/s7-11-13/s71113.shtml http://www.gpo.gov/fdsys/pkg/FR-2014-01-23/pdf/2013-30508.pdf http://www.sec.gov/rules/proposed/2013/33-9497.pdf http://www.scribd.com/doc/266635580/Galvin-v-sec-US-Court-of-Appeals Under the new Code of Federal Regulations section 230.255, “solicitation of interest” documents or materials are permitted in advance of a planned Regulation A Offering, on condition that the so-called “testing the waters” solicitation materials are provided to the Commission at the time of application for qualification. They must also contain a required legend/disclaimer as detailed in Section 230.255. See: http://www.sec.gov/rules/final/2015/33-9741.pdf As stated explicitly in the new Section 230.255 – “Such communications are deemed to be an offer of a security for sale for purposes of the antifraud provisions of the federal securities laws.” My proposed EOI communications will “test the waters” in general, attracting non-Accredited investors to whom no securities are being offered because for example the securities being advertised pursuant to Rule 506(c) are not being offered to non-Accredited purchasers. In the alternative, my EOI materials might not be disseminated as part of any Rule 506(c) Offering general advertising. In such form my EOI advertising materials may not contain any information about price, valuation, forecasts of future performance, nor convey any representation as to past performance and investment outcomes for any previous investors in other Offerings that anyone associated with my company, myself or my co-founders participated. I do not believe I am required to engage in the charade of cloaking my solicitations to non-Accredited investors in the Regulation D Rule 506(c) registration-exempt “safe harbor” merely to ask members of the general public to send me their contact information if they might be interested in receiving future notifications from me. Asking to be added to my mailing list cannot possibly be deemed by securities regulators to constitute illegal “offers” nor “solicitations of offers to buy” as your office at the SEC has previously implied with your corrupt Rulemaking and your intentionally-misleading interpretive guidance. Under the new Rule 506(c) and in the spirit of the JOBS Act legislation taken as a whole, you can no longer deceive me into believing that I cannot advertise without federal or state regulatory enforcement action being brought against me, or worse, a risk of being charged criminally in Texas. For example, my Rule 506(c) Offering materials might communicate words to the effect of “This is an Offering intended for Accredited investors only. If you are not a qualified Accredited investor but wish to submit an Expression of Interest anyway to be contacted directly in the future if another public offer is made to non-Accredited investors, please call or click to provide your contact details.” Clearly the Commission should issue a “No-Action Letter” to me to clarify that “soliciting” such EOI represents a mechanism of pre-Offering public communications permissible under the new JOBS Act Rules. Even if I do not make “offers” to “Accredited” investors as part of my advertising materials, since as a matter of fact the only reason I would even bother to communicate “Offering” materials under Rule 506(c) is to attempt to trick “Accredited” investors into wasting their time and money talking with me, so that maybe they will miss an opportunity to do something else during that same time that would have made them even wealthier than they already are if not for having wasted their time talking to me, it is my understanding and belief that my general solicitation and general advertising is automatically covered by Regulation D Rule 506(c) because, as you know, presently there is no requirement for filing of any Form D in advance of commencing a Rule 506(c) Offering. I am already permitted to advertise in any P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
  • 7. way I wish, and to generally solicit investment capital in public, and provided that I comply with the “reasonable steps” requirement of Rule 506(c) when selling my securities to “Accredited” investors. As you know also, failure to file a Form D does not render my Rule 506(c) Offering ineligible for the safe harbors and the registration exemption provided by the Rule! The SEC has proposed to implement a filing requirement for Form D in a revision to Rule 506(c) and if a filing requirement were to be enacted by Rulemaking, or if my Rule 506(c) “Offering” materials are required to be filed in advance of first use in revised 506(c), then of course I would file such documents or forms with the SEC in advance of my general solicitation and general advertising and in that case I would not continue advertising my EOI independent of my Rule 506(c) “Offering” materials unless your office issues the No-Action Letter that I am requesting. This hypothetical will help you appreciate my current and proposed course of conduct, because if you do not issue a No-Action Letter to me then I will conscientiously cloak my general solicitation and general advertising which seeks only to attract those non-Accredited investors, whom I am willing to work to help financially in their economic and class war against the “Accredited” wealthy elite, in the facade of a Rule 506(c) Offering in order to gain the legal protections that such an Offering affords to me, including the ability to preempt state securities regulators nationwide at no cost to me or my investors. However, if you do issue a No-Action Letter to me then I may not go through those motions because I believe your No-Action Letter would provide me with the same cost-free preemption of state securities regulations which unconstitutionally prohibit me from engaging freely in general solicitation and general advertising as I “test the waters” to attract non-Accredited investors who may wish to become my backers in the future when and if I join a Title III funding portal, relocate my startup to a state that offers an in-state crowdfunding exemption, or register my securities under federal or state securities law in order to lawfully “offer” and “sell” them to members of the general public who are the non-Accredited people for whom I wish to produce wealth. It is my belief the Commission cannot prohibit me, my co-founders nor my company from soliciting the general public seeking “Expressions of Interest” (EOI) prior to commencing either a JOBS Act Title III or Title IV public Offering because, by definition, under Section 2(a)(3) of the Securities Act such EOI solicitations are not “offers” of any security to offerees. Similarly, it is my belief that it was not the intent of Congress nor the Commission to create uncertainty as to whether persons who contact issuers in response to Rule 506(c) general solicitation/general advertising materials but who are not Accredited persons are legally permitted to request a future direct Offering of securities. It is no longer useful, nor correct, to presume all public communications with potential investors automatically constitute “offers” of securities for purposes of anti-fraud provisions of securities laws. In the case of general Expressions of Interest from non-Accredited investors who are not eligible to invest in a Rule 506(c) Offering, or when no Offering of any kind is yet being made to anybody but a future Offering might occur, the new Rules are just not clear. I strongly urge the Commission to confirm I have the right to receive such EOI. I have reviewed the previously-issued No-Action Letters under Section 2(a)(3) and it seems clear to me from this and my other analysis that the Commission should concur that there is in fact no “offer” of securities being made in the circumstance I am describing. My proposed actions should not prompt the Commission to recommend enforcement action against me, my co-founders or my company when we solicit EOI from members of the general public prior to commencing a new JOBS Act public Offering. My proposed pre-Offering EOI communications enable follow-ups with interested parties in the future, after the final JOBS Act Title III Rule becomes effective, when my “offers” of unregistered securities to non-Accredited investors are allowed irrespective of the offerees' sophistication or qualification. In the P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com
  • 8. alternative, my proposed pre-Offering EOI communications can enable direct advertising to potential purchasers who have expressed interest in purchasing securities when and if an “offer” can lawfully be made to them in a direct public offering, such as after a new registration statement filing is in effect. My proposed EOI communications are not a Rule 135 notice of proposed registered Offering, however, because I don't intend to file a registration statement unless the SEC fails to enact any further JOBS Act Rule which will permit offers and sales to non-Accredited investors. Rather, I hope only to receive EOI responses from members of the general public who wish to inform me that they might be interested in a future offer of my unregistered securities when my offers are permitted under the final JOBS Act Rules. I respectfully request that the Commission verify, in the “No-Action Letter” that it issues to me, that the Rule 155 safe harbor is still applicable to JOBS Act “private” Offerings of unregistered securities and further that I am authorized to switch from gathering these EOI for my future Offering of unregistered securities to direct marketing of a proposed registered Offering in compliance with Rule 135. See: https://www.sec.gov/rules/final/33-7943.htm My proposed EOI communications are also not, strictly-speaking, “testing the waters” communications as defined by current Code of Federal Regulations under Section 230.255, because those Regulation A “solicitation of interest” documents or materials apply only to a proposed Regulation A Offering. My company does not intend to conduct a Regulation A Offering, so “testing the waters” with “solicitation of interest” documents or materials pursuant to Section 230.255 would be inappropriate. Although it is possible that we will decide to conduct a Regulation A+ Offering under Title IV of the JOBS Act, my proposed EOI communications are not meant to commence the selling process for such an Offering. Under Regulation D Rule 506(c) there is no requirement of any kind for disclaimers or legends as required of “testing the waters” in Regulation A. I'm already authorized to publicize anything I wish, without referencing Rule 506(c), provided that I do not sell unregistered securities to non-Accredited investors. I can generally solicit and generally advertise my unregistered securities and receive contacts from people who aren't Accredited persons without violating Securities Act Section 5, and also without complying with Section 230.255. However, absent a No-Action Letter I must presume non-Accredited contact information received in reply to Rule 506(c) advertising efforts must be deleted. Thus I will need to start over with Section 230.255-, or Rule 135-, or Title III-compliant funding portal advertising efforts later. Worse, I must self-regulate to block subsequent sales under Title III or Title IV to anyone who made the mistake of responding to my 506(c) advertising, otherwise my general solicitation directly results in subsequent sales to non-Accredited persons. I clearly need a No-Action Letter affirming my Rule 506(c) communications to and with the general public are not “offers” as defined by Section 2(a)(3) with respect to non-Accredited persons due to the fact they are not eligible to invest. In education it is often said that standardized testing cannot measure anything beautiful or complex. I firmly believe that life, all life including human life and plant life and the life of microbes, and even political life, is beautiful and complex. Your Commission's refusal to acknowledge that my life, and my startup, and my reasons for seeking to communicate with members of the general public and to form new associations or seek a redress of my grievances against my government, is beautiful and complex will be a material harm, not only to me but to every other person who will ever live as we each face your “standardized testing” of wealth being used as a proxy for eligibility for access to freedom. Thank you for your prompt reply. Please reply in writing if you aren't issuing a No-Action Letter to me. Emily Coombs (Co-Founder of FoodBiome.com) P.O. Box 636, Kurtistown, HI 96760 Mobile +1.808.769.1147 https://www.foodbiome.com