By ROBB MANDELBAUM,
Last week, in our post about the Securities and Exchange Commission’s proposed regulation for crowdfunding, we reported that the rules might make it harder for specialized crowdfunding portals to earn much of a living facilitating such deals.
The JOBS Act of 2012 established funding portals as a relatively low-cost, less-regulated channel for small businesses to sell securities directly to the public, and would-be crowdfunding portals begged the agency to permit them to charge those companies a percentage of the amount they hoped to raise, just as brokers would. But according to lawyers following the S.E.C.’s rule making, the agency was unclear about whether portals could earn such a so-called success fee. By at least one lawyer’s reading, the S.E.C. seemed to be shutting the door to the big money for portals.
The agency, however, would like to clear the air. “I don’t understand how they’re piecing together that we’re prohibiting funding portals from receiving commissions,” said David Blass, chief counsel of the agency’s Division of Trading and Markets. “We thought we were perfectly clear.
“To be clear,” he continued, “the rules do permit funding portals to receive commissions.”
What the regulations tried to explain, Mr. Blass said, is that “funding portals, even if they don’t receive a commission, are still brokers,” but that the JOBS Act gives them an exemption from registering as brokers. The official drew a parallel to investment advisers, who also do not have to register with the commission as brokers (they do have to register as investment advisers). “It’s the same thing: funding portals are a type of broker that isn’t required to register under the full regulatory scheme that applies to brokers,” Mr. Blass said.
The only restriction on portals taking a commission based on how much money they raise, Mr. Blass said, is that the portal must fully disclose how it will be compensated by issuers when a prospective investor opens an account. This is not a requirement set by the JOBS Act itself, but the S.E.C. added it, according to the proposed rule, to help “ensure investors are aware of any potential conflicts of interest of an intermediary that arise from the manner in which the intermediary is compensated.”