The JOBS Act: FundersClub And Footnote 1

William Carleton, Contributing Editor, VCExperts

For angel crowdfunding platforms in general, footnote 1 of the FundersClub no-action letter may be the most important.

For while the SEC staff appear to be indicating that FundersClub may take a carry, and may otherwise conduct business exempt from broker dealer regulations as a VC might (the FundersClub model will likely permanently disrupt the current VC model), footnote 1 may be suggesting that a carry, in and of itself, will blow the JOBS Act Section 201(c) exemption from federal broker-dealer registration requirements.

That JOBS Act exemption requires that the platform and persons associated with it receive "no compensation in connection with the purchase or sale" of the securities offered through the platform.

The very same exemption expressly blesses co-investment, and one can certainly make a good argument that a carry - contingent compensation which is not paid unless and until investors have all of their capital returned - is in the nature of a co-investment. When it comes to lobbying for income tax breaks, the VC industry of course takes the position that carried interest should be taxed as capital gain - that is to say, like an investment, even if "purchased" with time rather than dollars - and not taxed as ordinary income.

But footnote 1 says no.

Doesn't it? Here is the full footnote:

It may be that, from the SEC perspective, the no-action letter for FundersClub shores up the recent staff FAQ, which appears to take a very restrictive view of angel platform compensation. The statute itself clearly contemplates that angel platforms may charge for "ancillary services," but we don't yet know what the parameters are for such fees or compensation.

William Carleton

Bill is a member of McNaul Ebel Nawrot & Helgren PLLC, a Seattle law firm. He blogs every day at