Amended  IN  Senate  April 17, 2023
Amended  IN  Senate  April 10, 2023
Amended  IN  Senate  March 20, 2023
Amended  IN  Senate  March 16, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 54

Introduced by Senator Skinner
(Coauthor: Senator Atkins)

December 06, 2022

An act to add Chapter 40 (commencing with Section 22949.85) to Division 8 of the Business and Professions Section 25239 to the Corporations Code, relating to professions and vocations. corporations.


LEGISLATIVE COUNSEL'S DIGEST


SB 54, as amended, Skinner. Institutional investors: Investment advisers: reporting.
Existing law, the Corporate Securities Law of 1968, regulates, among other things, investment advisers, as defined. The law makes it unlawful for any investment adviser to conduct business as an investment adviser in this state unless the investment adviser has first applied for and secured from the Commissioner of Financial Protection and Innovation a certificate, then in effect, authorizing the investment adviser to do so, except as specified. The law authorizes the commissioner to deny a certificate to, or suspend or revoke the certificate of, an investment adviser under specified circumstances.
This bill would, commencing on March 1, 2025, and annually thereafter, require a covered person, defined as a person who acts an investment adviser to a venture capital company and meets any of specified criteria, to report to the commissioner specified information about their funding determinations, including, at an aggregate level, specified demographic information for the founding teams of all of the businesses in which the covered person made a venture capital investment in the prior calendar year to the extent the information was provided pursuant to a survey the bill would require a covered person to provide to each founding team member of a business that has received funding from a venture capital company to which the covered person has acted as an investment adviser, as specified. The bill would require this information to be collected and reported in a manner that does not associate the survey response data with an individual founding team member, make that information confidential, and prohibit the commissioner and the covered person from releasing that information under any circumstances, except as required by the bill’s provisions. The bill would require the commissioner to charge and collect fees to administer these provisions, as specified. The bill would require the commissioner to notify the covered person that the covered person must submit the report within 60 days of the notification, and require the commissioner to charge and collect a penalty of $100,000 if the covered person has not submitted the report after those 60 days have elapsed, as specified. The bill would define various terms for these purposes.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.

Existing law regulates various interactions with institutional investors, including authorizing licensed finance lenders and brokers to sell promissory notes to repay loans to institutional investors, regulating benefits accruing from specified funds received by real estate brokers who collect payments or provide services for an institutional investor in connection with specified loans, authorizing premium finance companies to issue and sell investment certificates only to, among others, institutional investors, and authorizing licensed residential mortgage lenders and servicers to engage as principals in the business of buying from or selling to institutional investors residential mortgage loans by using or advancing the lender’s or servicer’s own funds.

Existing law establishes the Department of Financial Protection and Innovation (department) in the Business, Consumer Services, and Housing Agency, headed by the Commissioner of Financial Protection and Innovation. Under existing law, the department has charge of the execution of specified laws relating to various financial institutions and financial services, including banks, trust companies, credit unions, finance lenders, and residential mortgage lenders.

This bill, commencing on March 1, 2025, and annually thereafter, would, except as specified, require an institutional investor to submit a report to the department that includes, among other things, the total amount funded to companies primarily founded by an individual who is female or an individual from an underrepresented community as a percentage of the total number of investments the institutional investor made during the prior calendar year and the total amount of money the institutional investor invested in companies primarily founded by an individual who is female or an individual from an underrepresented community as a percentage of the total amount of money invested by the institutional investor during the prior calendar year. The bill would make an institutional investor who fails to comply with these provisions liable for a civil penalty of $100,000 per report in an administrative proceeding brought by the department, and would require the department to publish a list on its internet website by December 31 of each year that includes every institutional investor who failed to comply with these provisions in that year. The bill would define various terms for these purposes. The bill would make related legislative findings and declarations.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 25239 is added to the Corporations Code, to read:

25239.
 (a) For the purposes of this section, the following definitions apply:
(1) “Covered person” means a person that does both of the following:
(A) Acts as an investment adviser to a venture capital company.
(B) Meets any of the following criteria:
(i) Has a certificate from the commissioner pursuant to Section 25231,
(ii) Has filed an annual notice with the commissioner pursuant to subdivision (b) of Section 25230.1.
(iii) Is exempt from registration under the Investment Advisers Act of 1940 pursuant to subsection (l) of Section 80b-3 of Title 15 of the United States Code and has filed a report with the commissioner pursuant to paragraph (2) of subdivision (b) of Section 260.204.9 of Title 10 of the California Code of Regulations.
(2) “Diverse founding team member” means a founding team member who self-identifies as a woman, nonbinary, Black, African American, Hispanic, Latino-Latina, Asian, Pacific Islander, Native American, Native Hawaiian, Alaskan Native, veteran or disabled veteran, lesbian, gay, bisexual, transgender, or queer.
(3) “Founding team member” means either of the following:
(A) A person who owns initial shares or similar ownership interests of a business and played a significant role in conceiving, developing, or establishing the business prior to the initial shares being issued.
(B) A person who has been designated as the chief executive officer, president, or chief financial officer of a business.
(4) “Venture capital company” has the same meaning as defined in paragraph (4) of subdivision (a) of Section 260.204.9 of Title 10 of the California Code of Regulations.
(5) “Venture capital investment” has the same meaning as defined in paragraph (5) of subdivision (a) of Section 260.204.9 of Title 10 of the California Code of Regulations.
(b) (1) Commencing on March 1, 2025, and annually thereafter, a covered person shall report to the commissioner all of the following information about its funding determinations:
(A) At an aggregated level, all of the following information for the founding teams of all of the businesses in which the covered person made a venture capital investment in the prior calendar year to the extent the information was provided pursuant to the survey described in paragraph (2):
(i) The gender identity of each member of the founding team, including nonbinary and gender-fluid identities.
(ii) The race of each member of the founding team.
(iii) The ethnicity of each member of the founding team.
(iv) The disability status of each member of the founding team.
(v) Whether any member of the founding team identifies as LGBTQ+.
(vi) Whether any member of the founding team declined to provide any of the information described in clause (i) to (v), inclusive.
(B) (i) During the prior calendar year, the total amount funded to businesses primarily founded by diverse founding team members, as a percentage of the total number of venture capital investments the covered person made, in the aggregate and broken down into the categories described in clauses (i) to (v), inclusive, of subparagraph (A).
(ii) The information provided pursuant to this subparagraph shall be anonymized.
(C) During the prior calendar year, the total amount funded to businesses primarily founded by diverse founding team members, as a percentage of the total amount of money invested by the covered person, in the aggregate and broken down into the categories described in clauses (i) to (v), inclusive, of subparagraph (A).
(2) (A) A covered person shall obtain the information required by paragraph (1) by providing each founding team member of a business that has received funding from a venture capital company to which the covered person has acted as an investment adviser with an opportunity to participate in a survey for the purpose of collecting the information.
(B) The survey described in subparagraph (A) shall be provided pursuant to a standardized form specified by the commissioner. The survey shall include a “decline to state” option for each question on the survey.
(C) A covered person shall provide a written disclosure to each founding team member prior to, or concurrently with, the survey described in subparagraph (A) that states all of the following:
(i) The founding team member’s decision to disclose their demographic information is voluntary.
(ii) No adverse action will be taken against the founding team member if they decline to participate in the survey.
(iii) The aggregate data collected for each demographic category will be reported to the department.
(D) A covered person shall not provide the survey described in subparagraph (A) and the disclosure described in subparagraph (C) to a founding team member until after the covered person has executed an investment agreement with the business and made the first transfer of funds.
(E) Neither a covered person nor the commissioner shall in any way encourage, incentivize, or attempt to influence the decision of a founding team member to participate in the survey described in subparagraph (A).
(3) A covered person required to conduct the survey described in subparagraph (A) of paragraph (2) shall do both of the following:
(A) Collect survey response data from the founding team members in a manner that does not associate the survey response data with an individual founding team member.
(B) Report the survey response data pursuant to paragraph (1) in a manner that does not associate the survey response data with an individual founding team member.
(c) A covered person may satisfy the requirements of this section by providing a report prepared by a business that controls each venture capital company to which the covered person acted as an investment adviser at any time during the prior calendar year if the report contains all of the information required by paragraph (1) of subdivision (b).
(d) The commissioner shall make the reports received pursuant to subdivision (b) readily accessible, easily searchable, and easily downloadable on the department’s internet website.
(e) Except as required by this section, the information collected pursuant to this section is confidential and shall not be released by the commissioner or a covered person under any circumstances.
(f) (1) A covered person shall make and keep records related to its obligations under this section. All records related to a report delivered to the commissioner pursuant to subdivision (b) shall be preserved for at least four years after the covered person delivers the report.
(2) The commissioner may examine the records of a covered person to determine their compliance with this section.
(3) The commissioner shall charge and collect fees from covered persons to cover the expenses incurred in the administration of this section, not to exceed the reasonable costs of that administration. The fee for a covered person to file a report required by this section shall be ____ dollars ($____).
(g) If a covered person fails to file a report required by subdivision (b) by March 1 of a given year, the commissioner shall notify the covered person that the covered person must submit the report within 60 days of the notification. If the covered person has not submitted the report after those 60 days have elapsed, the commissioner shall charge and collect a penalty of one hundred thousand dollars ($100,000), the proceeds of which shall be deposited in the Financial Protection Fund.

SEC. 2.

 The Legislature finds and declares that Section 1 of this act, which adds Section 25239 to the Corporations Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the privacy of individuals, it is necessary that this act limit the public’s right of access to that information.