In early 2013 the SEC issued no-action letters concluding that FundersClub and AngelList were not required to register as broker-dealers. Both companies were “venture capital fund advisers,” a special flavor of investment adviser, and some people read into the no-action letters a cause-and-effect, concluding that if a Crowdfunding portal registers as an investment adviser, which is relatively easy, then it doesn’t have to register as a broker-dealer, which is very hard.
When the SEC issues no-action letters, it doesn’t explain its reasoning. It provides the facts and the legal conclusion and leaves it to readers to figure out what was important and what wasn’t.
It’s possible that as the SEC weighed the requests by FundersClub and AngelList, a regulator thought “This is a close call, and because they’re already regulated as investment advisers we’ll give them a pass on broker-dealer registration.” But that’s just speculation, not a legal argument. A portal operating exactly in the manner described in the no-action letters might take comfort. Others, including any real estate portal, should not.
Under the securities laws, investment advisers are one thing and broker-dealers are something complete different – different functions, different rules, different risks. If you want to give investment advice, register as an investment adviser. If you’re in the portal business and think you need a broker-dealer, then either register yourself or use a provider like WealthForge or FundAmerica.
Questions? Let me know.