How To Operate A Title II Portal And A Title III Portal On The Same Platform

By Mark Roderick , CrowdFund Beat   Sr. Guest  Contributor, @CrowdfundAttny.

Most Title II and Title IV portals will also want to operate Title III portals, and vice versa. Can they do it?

The Title III regulations issued by the SEC appear to contemplate that a Title III portal – a “funding portal” – will do more than operate a Title III portal. For example, 17 CFR §227.401 provides that “A funding portal. . . .is exempt from the broker registration requirements of section 15(a)(1) of the Exchange Actin connection with its activities as a funding portal.” If a Title III portal couldn’t do anything else, that extra language at the end wouldn’t be necessary.

The same is true for of the regulations issued by FINRA. FINRA prohibits Funding Portals from making false or exaggerated claims, implying that past performance will recur, claiming that FINRA itself has blessed an offering, or engaging in other misconduct, but a well-behaved Title II or Title IV portal would have no trouble meeting those standards.

What about the platform itself? The Title III regulations (17 CFR §227.300(c)(4)) define “platform” as:

A program or application accessible via the Internet or other similar electronic communication medium through which a registered broker or a registered funding portal acts as an intermediary in a transaction involving the offer or sale of securities in reliance on section 4(a)(6) of the Securities Act.

Nothing there would prohibit Title II, Title III, and title IV securities from appearing on the same website.

The fly in the ointment is 17 CFR §227.300(c)(2)(ii), which provides that a Title III portal may not:

Offer investment advice or recommendations; OR
Solicit purchases, sales or offers to buy the securities displayed on its platform.
What does that mean, in the context of a portal offering both Title II and Title III securities? What itshould mean is that a Title III portal cannot offer investment advice or recommendations concerning Title III securities, and cannot solicit purchases, sales, or offers of Title III securities. The idea of Title III is to protect Title III investors. Why should the SEC care whether the portal is offering investment advice concerning Title II or Title IV securities?

But we can’t be 100% sure that’s what it means. If it means that a Title III portal can’t offer investment advice about any securities and can’t solicit offers to buy any securities, then we need to steer clear.

I’ve spoken informally with the SEC and they’re not sure how to interpret 17 CFR §227.300(c)(2)(ii). They suggested I submit a request for a no-action ruling and I guess I will, unless one of my Crowdfunding colleagues already has.

Pending that guidance, there are several ways to operate a Title II portal, a Title III portal, and a Title IV portal on the same platform:

Operate the portals through a single legal entity. Avoid giving investment advice to anybody or soliciting purchases, sales, or offers of any securities.
Operate the portals through one legal entity. If you want to offer investment advice and/or actively solicit, do it through or more additional legal entities. For now, limit the investment advice and active solicitation to Title II and Title IV securities.
Create a separate legal entity to hold the Title III license. Create an arm’s length license agreement between that entity and the entity that owns the platform (a simple downloadable form is here). List all the deals on the same platform, but make sure that when an investor clicks on a Title III deal the Title III portal handles the investment process.
Finally, FINRA is a wonderful organization, but I’m not necessarily eager to have FINRA looking at everything my clients do. All other things being equal, I might choose option #3 just to keep a degree of separation between the regulated entity and my non-regulated activities. But that’s not necessarily the end of it – FINRA will want to explore the relationship between the funding portal and its affiliates.

This is a form of a legal document. It might not be appropriate for your situation. Before using it, you should speak with a lawyer. This form does not constitute legal advice and does not establish a lawyer/client relationship between you and Flaster Greenberg PC.



Mark also maintains a widely-read Crowdfunding blog at In addition to Flaster/ Greenberg’s Crowdfunding Practice, Mark is also a member of the firm’s Mergers and Acquisitions, Business and Corporate, and Taxation Practice Groups. He represents entrepreneurs and their businesses across a wide range of industries, including technology, real estate and healthcare. Mark holds a Master’s degree in mathematics as well as a J.D. from the University of Virginia. You can reach Mark at 856.661.2265 or mark.roderick@

For more information on Crowdfunding, including news, updates and links to important information pertaining to the JOBS Act and how Crowdfunding may affect your business, : @CrowdfundAttny.

Tags: , , , , , , , , , ,


This RSS feed URL is deprecated, please update. New URLs can be found in the footers at [...]

Oregon BusinessFor-profit giving normalized as crowdfunding maturesOregon BusinessNot so long ago, people might have thought twice about donating money to a for-profit company. But In the few years since crowdfunding debuted, thousands of companies have used online fundraising platfor [...]

New York PostToy tycoon leads crowdfunding effort to save Toys R Us brandNew York PostA budding campaign to buy Toys 'R' Us has hit a few bumps in the road, but its billionaire backer said he's just getting started. More On: toys “r” us · The best way to shop Toys [...]

ARL nowCrowdfunding Campaign Launched for Ballston Homicide VictimARL nowGiandoni, who would have turned 41 on Wednesday, was found dead in his home in Ballston last weekend. Police later determined his death to have been a homicide, though few details have been revealed about the cir [...]

4NEW To Implement Ocular KYC solution before completing ...BitcoinistLondon, England. 4NEW announced today that it will pause the current fundraising efforts on March 27, three days earlier than planned in order to allow the team to complete implementation of their KYC/Anti- Money Lau [...]

Jacaranda FMCape Town couple turns to crowdfunding for their dream weddingJacaranda FMMartea Roos and Marcel Steenkamp would love to be able to afford the wedding of their dreams. Would you donate towards their goal? Read on to see how you can help them, or find another worthy crowdfu [...]

Allentown Morning CallBillionaire toy executive hopes to raise $800 million via crowdfunding to save Toys R UsAllentown Morning CallIsaac Larian, the billionaire toy executive behind Bratz, Little Tikes and L.O.L. Surprise! dolls, wants to save Toys R Us. (Christopher Lee / Bloomberg) [...]

Honolulu Star-AdvertiserIndie film 'Waikiki' seeks crowdfunding boostHonolulu Star-AdvertiserDanielle Zalopany, right, stars as Kea in the independent feature “Waikiki,” set for release later this year. Zalopany is a Po'okela Award-winning actress and has appeared on CB [...]

KGO-TVGroup launches crowdfunding campaign for homeless on San ...KGO-TVTake it to the Streets has launched a $50000 crowdfunding campaign to provide housing and services for homeless young adults.and more » [...]

Multiple Sclerosis News TodayAmerican Brain Foundation Starts Crowdfunding Campaign to Help Fight MSMultiple Sclerosis News TodayThe American Brain Foundation has started a crowdfunding campaign to support research that could lead to treatments for multiple sclerosis and other autoimm [...]

CFB Finance


  • Crowdfunding
  • Crowdfund
  • Peer to Peer Lending
  • FinTech
  • Reg A+
  • Reg CF
  • Crowdfunding USA

Press Release

Live Crowdfunding .tv

What's Next Step in Regulation A+ JOBS ACTS Title IIII :L Interview : Steve Cinelli with Brian Korn Securities and Crowdfunding/Peer-to-Peer Lending Lawyer, Watch more video library | Conference | Interview | Campaign Showcase | Research | Education |