One of the goals of the JOBS Act was to encourage the development and use of platforms that permit accredited investors to invest in early stage and other private companies. The JOBS Act contains a provision that expressly exempts these platforms from broker-dealer registration if they meet several conditions. One of those conditions is that neither the platform, nor the people associated with the platform (such as employees), may receive “compensation in connection with the purchase or sale” of a security traded on the platform.

At one end of the spectrum, this compensation restriction prohibits these platforms and their employees from receiving commissions and similar fees related to the sale of securities. At the other end of the spectrum, it is fairly clear that this provision permits a platform to, for example, charge each user a fee to access the platform, regardless of whether the user purchases or sells any securities through the platform. This type of user fee, however, likely would be commercially unacceptable, and generally would ensure that few if any, potential investors would use the platform. As a result, a critical question is whether there is a permissible fee structure that falls between these two ends of the spectrum.