In reaction to the growth and popularity of cryptocurrencies and digital tokens, the SEC has recently begun to exercise its authority over the digital asset market. The SEC, which is responsible for oversight of the securities markets in the United States, has determined that most cryptocurrencies and digital tokens are by definition “securities” and therefore subject to its jurisdiction under the federal securities laws. Consistent with that view, the SEC has made public statements, issued investor alerts and carried out enforcement actions addressing digital assets within the traditional legal framework for primary offerings and secondary market trading of securities.
Receiving less attention but no less significant are the activities of investment professionals who are advising others on investing in cryptocurrencies and digital tokens. Digital assets are becoming widely viewed as a distinct asset class which can offer investors additional alpha and diversification strategies, and investment professionals and private hedge funds are quickly becoming active institutional players in the market. Continue reading Investment Advisers and Cryptocurrencies
The Securities and Exchange Commission (SEC) has made it clear that it considers all initial offerings of cryptocurrencies and digital tokens as offerings of securities. The matter is not completely free from doubt, as many cryptocurrency market participants continue to take issue with the SEC’s view. It is not inconceivable that the matter will ultimately end up in court or become the subject of legislation given the breadth of the ICO market, the potential of the underlying blockchain technology and the vast sums of money at stake. The SEC, however, has given all securities lawyers, accountants and underwriters fair warning, that for the present, almost all digital tokens and cryptocurrencies will be treated as securities under the federal securities laws and that any offer or sale of digital assets must be registered with the SEC or qualify for a valid exemption from registration.
The following link is a table that sets forth the terms of the more common methods of conducting securities offerings under federal securities law and SEC rules and regulations. Failure to fully comply with one of the offering alternatives can result in liability for investment losses, investor rescission rights, SEC civil penalties and criminal sanctions.
Click here to access the table “Securities Offering Requirements”: ICO Securities Offerings
Since the release of Bitcoin in 2009, cryptocurrencies and digital tokens powered by blockchain technology have garnered the attention of investors, financial intermediaries and government agencies. Sales of digital tokens representing cryptocurrencies or some other digital asset or utility in so-called initial coin offerings (ICOs) have provided over $10 billion in capital to technology startups, and the aggregate market value of digital coins has surpassed $325 billion. ICOs have been typically open to the public through website platforms that link to white papers describing a startup’s technological proposition. More often than not, ICOs fund little more than concepts and ideas rather than development stage businesses. Staying largely under the radar of financial regulators, many ICOs have been a source of fraud, market manipulation and the financing of illegitimate ventures.
The investigative report of the Securities and Exchange Commission (SEC) on The DAO in July 2017 served as a point of departure for the ICO marketplace. Over a 30-day period in mid-2016, The DAO, a digital decentralized autonomous organization initiated on the Ethereum blockchain, issued digital tokens worth $150 million to fund various “projects” that would be voted on by token holders. Investors in the tokens would share in the earnings from these projects and could sell DAO tokens on the open market over cryptocurrency exchanges. The SEC found that The DAO tokens were in fact securities under longstanding securities law principles and that any offer or sale of the tokens was subject to registration with the SEC unless there was a valid exemption. The SEC applied the Howey test, which dates back to 1946, in its analysis. Under the Howey test, a digital token is a security if it represents an investment of money in a common enterprise with a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. The SEC concluded The DAO token squarely met the criteria under the Howey test, and found that the tokens were securities sold without registration or a valid exemption. The SEC also indicated that the platforms that traded The DAO tokens were required to register under a national securities exchange or operate under an exemption. Continue reading Cryptocurrencies and Digital Tokens as Securities
At this week’s Practising Law Institute’s Annual Institute on Securities Regulation, SEC Chairman Jay Clayton commented, among other things, on initial coin offerings, or ICOs. As we know, this year alone billions of dollars have been raised in ICOs, where cryptocurrency in the form of a “token” or coin is sold to investors to raise money for a company or other business endeavor. The tokens often trade on an online platform. Previously the SEC had issued a warning saying that the tokens may be securities and to be careful. Prior to that players were assuming securities laws did not apply. They also last week issued a warning to celebrities about risks of endorsing ICOs.
Chairman Clayton went a bit further today, going off his script to say that he has yet to see an ICO that doesn’t have “sufficient indicia” of being a securities offering. He also mentioned that the trading platforms could face SEC scrutiny and might have to either register as national securities exchanges or make clear they have an exemption from doing so.
While there may well be circumstances in which structures can be implemented to avoid being deemed securities, it seems there could be an exciting opportunity for ICO promoters to conduct their offerings under the securities laws, and allow trading of tokens on proper SEC approved exchanges. There would still be real benefits, including not diluting insiders’ ownership of their company. This could reduce the risk of fraud and still encourage capital formation.
Purveyors of initial coin offerings (ICOs) received a strong lashing from the SEC recently in declaring that one particular ICO was a securities offering that should have been fully registered with the SEC or met with an exemption from registration. A very new and exploding technique, in ICOs companies issue digital tokens through blockchain technology to investors. It is said over $1 billion has been raised in ICOs just since this January. Several known pending deals seek to raise over $100 million each.
Because the coin purchasers do not invest in the company, some experts claim they are therefore not securities. The SEC disagreed but also said in a press release they would not bring an action against the particular company “in light of the facts and circumstances.” They then issued a warning to all those in the ICO world that many other such offerings might be deemed securities, especially if they become tradeable in a secondary market as many do. In ICOs, very little information is typically provided to investors, and many deals are completed even without attorneys or other advisers.
The SEC investigated the case in question, involving a virtual company known as “the DAO,” because millions of dollars of coins in their ICO were hacked (most were recovered). They also issued an investor bulletin warning the public about potential fraud in ICOs, including bad actors making promises of large returns on investment. ICOs may indeed become a worthwhile investment and method for companies to access capital, especially if promoters accede to the SEC’s warning and conduct a proper IPO or exempt offering such as under Regulation D.