Regulating the Gatekeepers: The Regulatory Scheme for Funding Portals in Crowdfunding Offerings
As discussed in our recent alert, SEC Adopts Final Equity Crowdfunding Rules – Will They Be Worth the Wait?, the Securities and Exchange Commission (the SEC) released its final rules on equity crowdfunding (Regulation Crowdfunding) on October 30, 2015. Further, as discussed in such recent alert, Title III of the Jumpstart Our Business Startups Act of 2012 (the JOBS Act) requires that issuers conduct crowdfunding offerings through intermediaries that are either registered broker-dealers or a new class of registrants called “funding portals.” The statute provides that intermediaries need to comply with such requirements as the SEC may, by rule, prescribe for the protection of investors and in the public interest. The final rules are intended to establish a streamlined process for funding portal registration which is less extensive than that required for broker-dealers. However, these rules also impose significant registration and compliance requirements intended to establish such intermediaries as gatekeepers responsible for monitoring the wisdom of the crowd. Therefore, although the past three years have witnessed a proliferation of technology companies established in anticipation of the funding portal role, it remains to be seen if the cost and complexity of compliance with the final rules will limit the number of funding portals that actually register with the SEC in the near future.
In addition to the final rules adopted by the SEC, FINRA released draft rules on October 23, 2013 regulating funding portal members. Organizations such as The Heritage Foundation and North American Securities Administrators Association, Inc., along with several other organizations, provided comments to the draft rules. FINRA filed updated rules with the SEC regulating funding portals (the Proposed Rules) almost 2 years later on October 9, 2015. The Proposed Rules are expected to be approved by the SEC in the near future.
The first section of this article explores the rules regulating funding portals, specifically under Rules 400 – 404 of Regulation Crowdfunding. In the second part of the article, we highlight important aspects of the Proposed Rules released by FINRA. We plan to supplement this alert in the near future with additional alerts regarding the final rules adopted by the SEC and practical considerations of crowdfunding.
Regulation Crowdfunding Final Rules on Funding Portals
Funding portals, like other SEC-regulated entities within the securities industry, are required to register with the SEC. In order to register, a funding portal must file Form Funding Portal in accordance with its instructions. The registration form adopted by the SEC contains numerous disclosures regarding the funding portal entity including each of the following: (1) identifying information such as principal place of business, addresses, contact information, fiscal year, prior SEC registrations, and foreign registrations; (2) form of organization; (3) control relationships; (4) criminal, regulatory action, civil, and financial disclosures; (5) qualified third-party arrangements; (6) compensation arrangements; and (7) direct owners and executive officers.
Under the final rules, funding portal registration is effective the later of 30 calendar days after receipt of the registration form by the SEC or approval for membership in a national securities association. All applications and reports are deemed filed once a complete registration form is submitted with the SEC. Commenters to the SEC’s proposing release (the Proposing Release) expressed concerns that this registration requirement was too stringent and created an undue financial burden. Nevertheless, the SEC stated that the final registration process is based on the broker-dealer registration framework which has proven effective in providing investor protections and allowing the SEC to perform its oversight function. The SEC further emphasized that the registration requirement for funding portals is less extensive than that for broker-dealers and, therefore, appropriately takes into account the more limited activities of funding portals.
The final rules also govern amendments to the registration and withdrawals from registration. Rule 400(b) requires that all amendments be filed within 30 days of any information previously submitted becoming inaccurate. In the event that a portal ceases to operate in its funding portal capacity, it must promptly file a withdrawal of registration on Form Funding Portal. The withdrawal will be effective on the later of 30 days after receipt by the SEC once the portal is no longer operational or, alternatively, within a longer period of time to which the portal may consent or the SEC by order may determine as necessary in the public interest or for the protection of investors.
The SEC subjects non-U.S. based funding portals, known as nonresident funding portals, to an additional regulatory framework pursuant to Rule 400(f). Nonresident funding portals must also provide additional information required by the SEC on Schedule C to Form Funding Portal. Notably, nonresident funding portals may only register with the SEC if there is an information sharing arrangement in place between the SEC and the applicable regulator in the jurisdiction in which the nonresident funding portal was organized or has its principal place of business.
Restrictions, Conditional Safe Harbor and Ongoing Compliance
Rule 402 of the final rules affirms that Section 3(a)(80) of the Securities Exchange Act of 1934 (as amended, the Exchange Act) places certain restrictions on the activities of funding portals acting as intermediaries in transactions involving crowdfunding offerings. Specifically, funding portals are prohibited from engaging in any of the following activities: providing investment advice or recommendations; soliciting purchases, sales, or offers to buy the securities offered or displayed on its platform; compensating employees, agents, or other persons for solicitation or based on the sale of securities displayed on its portal; handling investor funds or securities; and engaging in certain other activities as determined by the SEC.
In light of this statutory prohibition, the SEC created a “safe harbor” in Rule 402 to provide some clarity for funding portals. Under the safe harbor, subject to certain requirements, funding portals are permitted to undertake and participate in the following limited activities pursuant to the final rules:
determining whether and under what terms to allow issuers to offer and sell securities through their platforms;
applying objective criteria to highlight specific offerings displayed on their platforms;
providing objective search functions and similar tools to allow investors to search and sort offerings available through their platforms;
providing communication channels by which investors can communicate with one another and issuer representatives through their platforms about the offer(s);
advising issuers regarding the structure or content of an offering including assisting in preparing offering documentation;
compensating third parties for referrals;
paying, or offering to pay, compensation to registered broker-dealers for services including referrals;
receiving compensation from registered broker-dealers for services provided by the funding portals in connection with the offer or sale of securities;
advertising the existence of the funding portal and objectively identifying issuer(s) or available offering(s) available;
denying access to the platform or canceling offering(s) if the funding portal has a reasonable basis for believing the issuer or offering presents potential for fraud or otherwise raises concerns regarding investor protection;
accepting investment commitments for securities on behalf of issuer(s);
directing investors where to transmit funds or remit payment in connection with their securities purchases; and
directing qualified third parties to release proceeds to issuers upon completion of offering(s).
In order to ensure compliance with federal securities laws, funding portals are required to implement written policies aimed at achieving and maintaining such compliance. Additionally, with respect to privacy, funding portals must comply with the consumer financial information and safeguarding personal information privacy requirements set forth in 17 C.F.R. § 248 with respect to brokers. Further, funding portals must allow representatives of the SEC and relevant national securities association to examine and inspect all facets of its operations as they relate to funding portal activities, including their platforms, systems, premises and records.
Similar to the FINRA rules discussed in detail below, funding portals must comply with certain recordkeeping requirements imposed by the SEC. Pursuant to Rule 404 of the final rules, funding portals must make and preserve (generally in their original format) certain types of records for a total of five years and must retain such records in an easily accessible place for the first two years of such period. These records include records related to investors who purchase or attempt to purchase securities through the funding portal; records related to issuers offering and selling, or attempting to offer and sell, securities through the funding portal, as well as any control persons of such issuers; records of all communication occurring on or through the platform; records related to individuals using the communication channels provided by the platform; records required to demonstrate compliance with the final rules; notices provided by funding portals to issuers and investors; written agreements entered into by the funding portal relating to its business; daily, monthly, and quarterly summaries of transactions conducted through the funding portal; and logs reflecting the progress of each issuer offering or selling securities through the portal toward meeting target offering amounts.
In one departure from the proposed rules release two years ago, funding portals will not be required to maintain a fidelity bond. Proposed Rule 400(f) would have required that funding portals, as a condition of registration, maintain a fidelity bond that has a minimum coverage of $100,000 and which covers any associated person of the funding portal subject to certain exceptions and requirements set forth in the FINRA rules. The SEC ultimately determined that the fidelity bond requirement was not appropriate as funding portals are prohibited from holding, managing, possessing or otherwise handling investor funds or securities.
Additionally, funding portals must make and preserve all organizational documents during their operation or that of any successor. Records required to be made and preserved in accordance with Rule 404 may be maintained by a third party as long as the third party does so according to the standards set forth in the final rules. Additionally, funding portals utilizing the services of third parties in this fashion must file with their national securities association a written undertaking stating that such records are property of the funding portal and not the third party. All funding portal records are subject to reasonable, special or other examination by the SEC and national securities association at any time. Commenters generally did not object to the recordkeeping requirements contained in the SEC’s Proposing Release. In addition, the SEC stressed the importance of recordkeeping in enabling regulators to gather comprehensive information regarding the activities of funding portals and other parties involved in crowdfunding in order to determine whether all parties are complying with applicable securities laws and rules.
Under final rules, funding portals are subject to additional regulatory requirements that govern all intermediaries including broker-dealers. The expansive nature of these rules as discussed in our prior alert is noteworthy since they include the prevention of fraud (Rule 301), the provision of investor education (Rule 302(b)), the receipt of financial interests and compensation (Rule 300(b)) and certain other important requirements. These rules that are applicable to both funding portals and broker-dealers should be reviewed in conjunction with the requirements specifically designated for funding portals in order to fully understand the compliance requirements under Regulation Crowdfunding.
FINRA’s Proposed Rules Regulating Funding Portals
As discussed earlier in this article, each funding portal must become a member of a national securities association. Although FINRA filed its Proposed Rules with the SEC on October 9, 2015, the rules must be approved by the SEC before they become effective. FINRA’s Proposed Rules regulating funding portal members include a set of seven rules:
Rule 100 – General Standards
Rule 110 – Funding Portal Application
Rule 200 – Funding Portal Conduct
Rule 300 – Funding Portal Compliance
Rule 800 – Investigations and Sanctions
Rule 900 – Code of Procedure
Rule 1200 – Arbitration and Mediation
In addition to the Proposed Rules, FINRA proposed related forms for new membership applicants (Form FP-NMA); continuing membership applicants (Form FP-CMA); reporting requirements (Funding Portal Rule 300(c) Form); and annual revenue reporting (Form FP-Statement of Revenue). Although the SEC acknowledged that FINRA limited the regulatory framework applicable to funding portal members, given the limited scope of their permitted activities, the rules are complex and should be reviewed in depth prior to registering and maintaining a funding portal with FINRA. The below summary is a brief overview of the highlights regarding the Proposed Rules and FINRA’s involvement in crowdfunding offerings.
General Standards (Rule 100)
Similar to the FINRA Rule 0100 Series, Proposed Rule 100 sets forth basic standards and definitions that are incorporated throughout the Proposed Rules. The definitions are largely consistent with the current FINRA rules and are modified as appropriate to apply to funding portal members. Unless the context otherwise requires, all funding portals are subject to FINRA Bylaws and FINRA Regulation Bylaws. Importantly, under the Proposed Rules, all persons associated with a funding portal member have the same obligations as a funding portal member. This requirement extends to any sole proprietor, partner, officer, director or manager of a funding portal or any person directly or indirectly controlling or controlled by a funding portal member or any employee of such member.
Proposed Rule 110 addresses the membership application process, also known as MAP, for funding portals and is based on the current NASD Rule 1010 Series membership rules that apply to broker-dealers. However, FINRA simplified and streamlined the application process for funding portals given the limited scope of activities conducted by funding portals as compared to broker-dealers. An applicant must submit its application to the Department of Member Regulation of FINRA (the Department) using Form FP-NMA with an application fee. Prior to the applicant receiving a decision for new membership, the applicant will undergo an interview process which may be conducted by video conference. Under the rules, the interview will be conducted the later of 30 days after filing of the application or 14 days after the filing of all additional documentation requested by the Department.
Under the Proposed Rules, FINRA provided five guidelines for accepting an applicant’s membership submission. Generally, these five guidelines consolidate the 14 standards that apply to broker-dealer applications under NASD Rule 1014(a). The five guidelines include the following principles:
The applicant is capable of complying with applicable federal securities laws and the Proposed Rules, including observing high standards of commercial honor and just and equitable principles of trade. In making this determination, the Department will take into account all information in its possession, including whether the applicant or associated person is (1) subject to “statutory disqualification” under the Exchange Act or (2) subject to a pending, adjudicated, or settled regulatory action or investigation by certain agencies or subject to a criminal action that is pending, adjudicated or that has resulted in a guilty or no contest plea.
The applicant has established all contractual or other arrangements with banks, broker-dealers, clearing corporations, service bureaus, escrow agents, transfer agents and technology service providers in order to initiate the operations described in the application process.
The applicant has a supervisory system that is reasonably capable of achieving compliance with the applicable federal securities laws and the Proposed Rules.
The applicant has fully disclosed (and established through documentation) all direct and indirect funding sources.
The applicant has a recordkeeping system that enables compliance with federal, state and self-regulatory organization recordkeeping requirements.
Under the Proposed Rules, if the Department determines that the applicant meets the standards set forth above, the Department should approve the applicant contingent upon the applicant filing an executed written membership agreement with FINRA.
The Department must provide a decision within 60 days after the applicant’s filing or at such time as the Department and applicant may agree upon in writing. It is noteworthy that the timeline for registering as a funding portal is one-third (60 days) of the timeline applicable to broker-dealer applicants (180 days) under NASD Rule 1014(c). This reduced timeline is a direct reflection of the limited role of funding portals in crowdfunding offerings. In the event that an application is rejected by the Department, applicants have an avenue for relief through an appeal and review process. The applicant may even file for SEC review but such a filing will not stay the effectiveness of a decision by FINRA unless the SEC orders otherwise.
Under the Proposed Rules, each funding portal member must, in the conduct of its business, “observe high standards of commercial honor and just and equitable principles of trade.” This rule is largely consistent with FINRA Rule 2010 (Standards of Commercial Honor and Principles of Trade) and will require funding portal members to operate under heightened scrutiny. In addition, the Proposed Rules prohibit funding portals from effecting any transaction by means of manipulative, deceptive or other fraudulent device. While it is not clear to what extent FINRA will actively enforce such rules, funding portals are placed on notice that any action, or inaction, will be scrutinized by the applicable regulating agencies.
Communications by funding portals to investors are also regulated under the Proposed Rules. Moreover, communications are defined very broadly—any electronic or written communication that is distributed or made available by the funding portal to an investor. Funding portal communications must comply with certain enumerated restrictions and may not (1) include any false, exaggerated, unwarranted, promissory or misleading statements or claims; (2) omit any material fact, in light of the circumstances, which would cause the communication to be misleading; (3) imply that FINRA or any other regulatory organization endorses the funding portal member’s business; or (4) predict or project performance or imply that past performance will recur. In addition, there is a general requirement that all communications be based on principles of fair dealing and good faith and must be fair and balanced. Similar to other regulated entities in the securities industry, funding portal members will need to establish internal controls with respect to communications in order not to run afoul of the Proposed Rules.
Funding Portal Compliance (Rule 300)
Each funding portal member is required to create a supervisory system that oversees the activities of each associated person of the funding portal and that is reasonably designed to achieve compliance with the securities laws and the Proposed Rules. Proposed Rule 300(a) is a streamlined version of FINRA’s supervision rules and provides funding portal members with some flexibility with respect to their supervisory systems. Each funding portal’s supervisory system, at a minimum, must (1) establish and maintain written procedures to supervise the activities of the funding portal; (2) designate a person with authority to carry out the supervisor responsibilities; and (3) take reasonable efforts to determine that all supervisory personnel are qualified by virtue of experience or training. In addition, the Proposed Rules require that each funding portal member permit inspection of its business operations including its premises, systems, platforms and records by members of FINRA and the SEC. This inspection and examination requirement was largely drafted to be consistent with Rule 403(c) under Regulation Crowdfunding.
Funding portals also have reporting requirements with respect to FINRA. Under the Proposed Rules, funding portal members must promptly report to FINRA within 30 calendar days after the member knows or should have known of the existence of any of the following events:
the funding portal member is named as a defendant or respondent in certain regulatory proceedings (e.g., violation of any securities law), or has been found by a regulatory body or self-regulatory organization to have violated such laws;
the funding portal member is the subject of a written complaint involving allegations of fraudulent conduct or misuse of funds or assets;
the funding portal member is denied registration or is otherwise disciplined by certain regulatory bodies or self-regulatory organizations, or is denied membership in any such self-regulatory organization; or is barred from becoming associated with any member of any such self-regulatory organization;
the funding portal member is indicted, or convicted of, or pleads guilty to, or pleads no contest to, any felony; or any misdemeanor that involves certain offenses (e.g., bribery, theft, etc.);
the funding portal member is a director, controlling stockholder, partner, officer or sole proprietor of, or an associated person with, a broker, dealer, investment company, investment advisor, funding portal, underwriter or insurance company that was suspended, expelled or had its registration denied or revoked by any regulatory body, jurisdiction or organization, or is associated in such a capacity with a financial institution that was convicted of or pleaded no contest to, any felony or misdemeanor;
the funding portal member is a defendant or respondent in any securities or commodities related civil litigation or arbitration, is a defendant or respondent in any financial-related insurance civil litigation or arbitration, or is the subject of any claim for damages by an investor, broker, dealer or funding portal member that relates to the provision of financial services or relates to a financial transaction, and such civil litigation, arbitration or claim for damages has been disposed of by judgment, award or settlement for an amount exceeding $15,000;
the funding portal member is involved in the sale of any financial instrument, the provision of any investment advice or the financing of any such activities with any person who is subject to a “statutory disqualification” as that term is defined in the Exchange Act (with limited exceptions); and
with respect to an associated person of a funding portal member only, is the subject of any disciplinary action taken by the funding portal member involving suspension, termination, withholding of compensation or any other remuneration in excess of $2,500, the imposition of fines in excess of $2,500 or is otherwise disciplined in any manner that would have a significant limitation on the individual’s activities on a temporary or permanent basis.
In addition to disclosing any of the events described above, each funding portal member must report each year, in a manner prescribed by FINRA, the member’s gross revenue on Form FP- Statement of Revenue within 60 calendar days following the year end. The Proposed Rules require funding portal members to prepare statements of gross revenue in accordance with U.S. GAAP. Finally, each funding portal member must keep a current record listing (1) every associated person of such funding portal, (2) every office of the funding portal member where the associated person regularly conducts business, (3) any registration number prescribed by FINRA, and (4) every identification number or code assigned to the associated person by the funding portal member. Each funding portal member is required to preserve all records for a period of five years, the first two in an easily accessible place.
For a comprehensive review of funding portal compliance requirements, including requirements of compliance with certain sections of FINRA Rule 4530 (Reporting Requirements), each funding portal member should review Proposed Rule 300 in its entirety and have a thorough understanding of the supervisory system and reporting requirements relating to funding portal members.
Investigations and Sanctions (Rule 800); Code of Procedure (Rule 900); and Arbitration and Mediation (Rule 1200)
Generally, unless the context requires otherwise, each funding portal member is subject to the FINRA Rule 8000 series relating to investigations and sanctions, the FINRA Rule 9000 Series relating to code of procedure, the FINRA Rule 12000 Series relating to arbitration for customer disputes, the FINRA Rule 13000 Series relating to arbitration procedure for industry disputes and the FINRA Rule 14000 Series relating to mediation procedures. While this article does not address these rules in detail given that they are generally duplicative of the current rules adopted by FINRA and make contextual changes specifically for funding portal members, it is noteworthy that Proposed Rule 900(b) is a streamlined version of the current FINRA Rule 9520 Series. Proposed Rule 900(b) sets forth “eligibility procedures” for (1) a person to become or remain associated with a funding portal member notwithstanding the existence of a statutory disqualification as defined in the FINRA Bylaws and (2) a funding portal member or person associated with a funding portal member to obtain relief from the eligibility requirements of the FINRA Bylaws and Proposed Rules. Rule 900(b) governs, among other items, the initiation, withdrawal, communications, relief, and appeal process of the eligibility proceeding.
Funding portals will be instrumental in facilitating crowdfunding for issuers and investors in the coming years. Both the SEC final rules and FINRA’s Proposed Rules help clarify the role of funding portals and set specific parameters for registration, conduct, compliance and disclosure. Although the SEC emphasizes that the rules pertaining to funding portals are streamlined given the limited role of funding portals in the securities industry, it will be interesting to see whether the cost and complexity of the regulatory framework limits the number of platforms that ultimately choose to act as funding portals.
For additional information or questions, please contact Lori Smith (212.714.3075; firstname.lastname@example.org), Ryan Udell (215.864.7152; email@example.com), or Michael Psathas (212-868-4833; firstname.lastname@example.org).
 FINRA Funding Portal Rules available at http://www.finra.org/sites/default/files/rule_filing_file/SR-FINRA-2015-040.pdf.
 See Rule 400(a) of Regulation Crowdfunding.
 Form Funding Portal 17 C.F.R. § 249.2000.
 Rule 400(a) of Regulation Crowdfunding.
 Rule 400(e) of Regulation Crowdfunding.
 See Rel. No. 33-9470 (October 23, 2013) available at http://www.sec.gov/rules/proposed/2013/33-9470.pdf.
 Id. at 254.
 Rule 400(b) of Regulation Crowdfunding.
 Rule 400(d) of Regulation Crowdfunding.
 See Rule 400(f) of Regulation Crowdfunding.
 Rule 402(a) of Regulation Crowdfunding.
 See Rel. No. 33-9974 at 277.
 Rule 402(b) of Regulation Crowdfunding.
 See Rule 403(b) of Regulation Crowdfunding.
 Rule 403(c) of Regulation Crowdfunding.
 Rule 404(a) of Regulation Crowdfunding.
 Rule 404(b) of Regulation Crowdfunding.
 Rule 404(d) of Regulation Crowdfunding.
 Rule 404(e) of Regulation Crowdfunding.
 Release No. 33-9974 at. 324.
 See Rule 400(a) of Regulation Crowdfunding.
 Rule 100(b)(1) of the Proposed Rules.
 Rule 110(a)(3)(A) of the Proposed Rules.
 Rule 110(a)(9) of the Proposed Rules.
 Rule 110(a)(9)(C) of the Proposed Rules.
 Rule 110(a)(10)(A)-(E) of the Proposed Rules.
 Rule 110(a)(11)(A) of the Proposed Rules.
 Rule 110(a)(12) of the Proposed Rules.
 Rule 110(a)(13) of the Proposed Rules.
 Rule 110(a)(14) of the Proposed Rules.
 Rule 200(a) of the Proposed Rules.
 Rule 200(b) of the Proposed Rules.
 Rule 200(c)(1) of the Proposed Rules.
 Rule 200(c)(2)(A) of the Proposed Rules.
 Rule 200(c)(2)(B) of the Proposed Rules.
 Rule 300(a) of the Proposed Rules.
 Rule 300(a)(1) of the Proposed Rules.
 Rule 300(a)(2) of the Proposed Rules.
 Rule 300(c) of the Proposed Rules.
 Rule 300(e) of the Proposed Rules.
 Rule 300(f) of the Proposed Rules.
 See Rule 300(c)(5) of the Proposed Rules.
 Specifically excluded are FINRA Rule 8110 relating to availability of manual to customers; FINRA Rule 8211 relating to automated submission of trading data requested by FINRA; FINRA Rule 8213 relating to automated submission of trading data for non-exchange-listed securities requested by FINRA; and FINRA Rule 8312 relating to FINRA broker check disclosure.
 Specifically excluded are the FINRA Rule 9520 Series, which is addressed through Proposed Rule 900(b) relating to funding portal eligibility proceedings; the FINRA Rule 9557 Series relating to service of notice to members that are experiencing financial or operational difficulties under net capital requirements; and the FINRA Rule 9700 Series relating to automated quotation.