The U.S. Securities and Exchange Commission (SEC) plans to clarify when securities laws might apply to crypto token sales, an official said Friday.
In a speech at the University of Missouri School of Law, Hester Peirce, one of the SEC’s commissioners, said that the agency’s staff are working on “supplemental guidance” to help projects determine “whether their crypto-fundraising efforts fall under the securities laws.”
While the Howey test – the U.S. standard for determining whether something is a security – generally provides clarity, she said, there is a “need to tread carefully” as token offerings do not always resemble traditional securities offering.
For instance, capital raised from decentralized token offerings could mean it is not truly owned or controlled by a company or person, unlike with traditional securities which are controlled by issuers or promoters, Peirce explained, citing a report from Coin Center.
The application of Howey test can also be “overly broad,” the commissioner added. She did not provide an idea as to when the guidance might be issued.
In November 2018, William Hinman, SEC director of corporation finance, also said that the regulator intends to release “plain English” guidance for developers on when and how crypto tokens may be classified as securities.
On the subject of cryptocurrency regulations, Peirce continued to say, “ambiguity is not all bad,” and that the delays in bringing regulatory clarity may, in fact, allow “more freedom” for blockchain technology to grow and projects to mature.
The commissioner further said that the SEC is also mulling whether new rules need to be put in place to regulate the crypto space, adding:
“If we act appropriately, we can enable innovation on this new frontier to proceed without compromising the objectives of our securities laws – protecting investors, facilitating capital formation, and ensuring fair, orderly, and efficient markets.”
Peirce argued that the SEC sometimes can be “impulsive” in dealing with crypto project and offerings. “We owe it to investors to be careful, but we also owe it to them not to define their investment universe with our preferences,” she said.
In July 2017, the SEC notably declared that securities laws could apply to some token sales, after an examination of ethereum-based project The DAO, which had collapsed in 2016 losing investors $60 million.
SEC Commissioner Says Bitcoin ETF Will Be Approved ‘Eventually
A commissioner at the U.S. Securities and Exchange Commission (SEC) believes a bitcoin exchange-traded fund (ETF) will ultimately be approved.
Robert J. Jackson Jr., in an interview published by government-focused news source Roll Call on Wednesday, said:
“Eventually, do I think someone will satisfy the standards that we’ve laid out there? I hope so, yes, and I think so.”
A number of bitcoin ETF proposals have filed for SEC approval, but none has yet got the green light.
Jay Clayton, chairman of the SEC) has said he doesn’t see a pathway to a cryptocurrency ETF approval until concerns over market manipulation are addressed.
The SEC has to date rejected at least 10 such proposals. Last August, it turned down seven filings from ProShares, Direxion and GraniteShares. A day later, though, the regulator said it would review the proposals.
In July, the SEC for the second time rejected Cameron and Tyler Winklevoss’ proposal to list a bitcoin ETF on the Bats BZX Exchange.
Discussing the Winklevoss’ proposal with Roll Call, Jackson said it was “not a difficult case,” but the risk of manipulation and harm to investors was “enormous,” while the market has a “very serious” liquidity problem.
“I’m happy to say market participants have begun to come in with ideas. Whether or not we’re going to find one that really protects investors I don’t know, but I do know that that [Winklevoss] case wasn’t especially close.”
Another SEC commissioner has been even more pragmatic over the possibility of a bitcoin ETF. Back in July, Hester Peirce saidthat the Winklevoss’ proposed rule change “satisfies the statutory standard and that we should permit BZX to list and trade this bitcoin-based exchange-traded product (‘ETP’).”
“From my perspective, we need to be mindful of what our role is, and it’s not to be the ones who decide which innovations and which technologies get through and which ones don’t,” Peirce told CoinDesk soon after.
Today, Peirce tweeted that she looks forward to working with Jackson “to open the doors to innovation.”
The SEC’s rejections have clearly not deterred all from trying to make the ETF breakthrough.
Last month, due to the U.S. government shutdown, Cbeo withdrew its proposed rule change that, if approved, would clear the way for a bitcoin ETF backed by VanEck and SolidX. Days later it refiled.
Also in January, Bitwise Asset Management announced its plan to launch a bitcoin ETF.
R. J. Jackson Jr. image via YouTube/CECP
Security Token Offerings: A Way Past the SEC’s Incomplete Crypto Guidance?
2018 has been a tumultuous year on the regulatory front for the blockchain industry.
The year began with news that the SEC had issued dozens of subpoenas for blockchain startups that had issued unregistered token offerings, spreading alarm throughout the crypto world. These investigations have recently resulted in penalties, mandatory securities offering registrations and in some cases reimbursement to investors, for a few blockchain companies.
SEC Director William Hinman issued informal guidelines that bitcoin and ether were not securities because those networks had become “sufficiently decentralized.” Now, as the year winds to a close, we hear that the SEC will issue “plain English” guidance on the security token analysis as soon as early 2019.
In this uncertain regulatory environment, most blockchain startups contemplating token offerings are steering away from the public crypto markets and venturing into the brave new world of security token offerings. The buzz on the street is that “STOs” may be the next big wave for blockchain fundraising.
However, many blockchain startups initially planned their business model around what they perceived to be a utility token – a software license to use the token on a platform, often as the currency to pay for services or earn rewards in a digital marketplace powered by a blockchain.
As these start-ups shift their plans from doing ICOs toward the regulatory landscape of STOs instead, the biggest question is whether the STO is going to be the panacea everyone is looking for: what unresolved legal issues for STOs do we confront in 2019? What cutting edge issues are currently boggling the minds of securities attorneys as they begin to execute these STOs?
Using Security Tokens on a Blockchain
Most STOs that are currently being initiated are private placement securities offerings to accredited investors.
However, the private placement poses a number of unresolved problems for blockchain companies wishing to use the tokens on their platforms. These issues will have to be analyzed carefully under the facts and circumstances of each blockchain platform, but some general considerations include:
- Accreditation: Will the accredited status of investors have to be checked every time that the platform issues tokens, even where the tokens are being issued as rewards earned on the platform?
- One-Year Lockup: Will initial token users have to hold the tokens for a year each time they earn tokens on the platform before using them for functional purposes on the platform such as paying for services?
- State Issuer Dealer Registration: Will blockchain companies have to register as issuer dealers with several states that have such requirements before they can transact in their own securities on their platform? The American Bar Association published a useful article on state issuer dealer registration laws. Although these issuer dealer laws usually affect primarily public offerings of securities rather than private placements, a different novel question is presented by blockchain platforms that deal in their own securities on an ongoing basis after initial issuance.
- Registration as an Alternative Trading System (“ATS”): If the blockchain platform is acting as a marketplace to bring together sellers and purchasers of security tokens, at what point does it need to register as an ATS? The SEC has yet to issue clear guidance regarding the circumstances under which a blockchain platform dealing in security tokens would be regarded as a securities “exchange,” particularly in difficult cases where the platform does not call itself an exchange of any kind.
Brave New Frontier of Reg A+ STOs
For blockchain companies that intended their tokens to be sold to the general public rather than accredited investors, without resale restrictions, all eyes are on the backlog of exempt public security offerings, or Regulation A+ STOs, currently sitting with the SEC awaiting approval.
Although blockchain companies that have filed Form 1-As under Regulation A+ generally regard their discussions with the SEC as confidential, the grapevine has relayed that there are currently unresolved obstacles to SEC compliance for these offerings. Hopefully in 2019, we’ll see the first qualifications of Reg A+ STOs and the exempt public securities offering will no longer be considered an “experimental” area.
Problems for Secondary Trading
Once hurdles with regard to federal securities laws on resales are cleared, blockchain companies will have to figure out some way to comply with state Blue Sky laws regarding secondary trading.
Each state offers a set of exemptions under which secondary trading may take place, with many states offering an “unsolicited brokerage transactions” exemption. 2019 will be the year when issues regarding state securities laws on secondary trading must be resolved.
Conclusion: Looking Ahead
2019 promises to be an exciting and eventful year for security token offerings.
For the first time, the blockchain industry will figure out if there is a way forward from the SEC’s informal guidance that most token offerings will have to be registered or issued under an exemption from registration. Furthermore, a wild card has been thrown into the regulatory mix with the recent introduction of a new bill amending the Securities Act to define cryptocurrencies as not being securities so long as they are utilized on a functioning network.
It is far from clear that STOs will provide an easy solution for blockchain start-ups that planned a utility token model and are now steering clear of the public crypto markets, but undoubtedly securities attorneys will throw in their best efforts to resolve these issues.
SEC Is Rallying International Cooperation To Crackdown On Dodgy ICO Token Sales
SEC Rallying International Cooperation To Crack Down On Dodgy ICOs
initial coin offering (ICO) sector has been instrumental in setting up the crypto industry. Coins, small and big, have been able to present their case for public attention and funds. This has led to some extraordinary gains, both in terms of financial, for the initial backers, and the technology offered by these projects. However all this, unsurprisingly, has attracted unwanted attention from scammers and con artists. Things today are at a stage where more than 75% of ICOs in 2017 were marked as scams. This year almost $5 million was lost to some sort of a con job. Thus when the head of U.S. Securities and Exchange Commission (SEC) discussed the importance of international cooperation to ensure successful investigations into these plays and general vigilance with the ICO sector, it was well received.
Certa Bonum Certamen
Speaking at the prestigious Harvard Law School, Steven Peikin, co-director of the enforcement division was discussing the challenges faced by his team when dealing with the unenviably “daunting task of ferreting out misconduct and, where appropriate, recommending civil enforcement actions that variously seek injunctions or cease-and-desist orders, penalties, disgorgement of ill-gotten gains, suspensions and bars of bad actors, and the temporary suspension or delisting of securities.”
In his speech, the head of SEC discussed the two most common types of violations of the securities law that these offerings typically try to pull off. The first one might meet the textbook definition of what a security is, but as he points out, it is ” being sold, brokered, or traded to U.S. investors without complying with the registration requirements of the federal securities laws.” The second is more damaging to the whole industry, where “ICOs appear to be simply outright frauds — where the issuers are using excitement around the crypto-asset space to simply rip off money from investors.”
Mr. Peikin had no illusions about the possible hurdles in the pursuit of justice. However, he was confident that, with international collaboration, they will be able to fight the good fight and bring fraudulent ICOs to justice. The simple fact that many of these sham offerings are located outside borders of the U.S. makes the help of overseas regulatory bodies essential. The SEC feels this helps everyone as the money that is ripped off, is from investors everywhere.
Canada Shows How It Is Done.
To highlight his point about international assistance, Mr. Peikin noted its immense value to the SEC in regulating the ICO sphere. He gave the example of the friendly Canadian neighbors, where regulators in Quebec, the Autorité des marchés financiers actively assisted his team. This was directly responsible for exposing the fraudulent Plexcoin token sale and allowed them to charge two Canadian residents. This he hopes will let them set a precedent and help them foster a better understanding with other regulators so that they can develop other cases.
Its Still A High-Risk Investment
From a modest $95 million, in 2016, ICOs have raised more than $20 billion today. This astronomical rise has been due to the booming interest in blockchain and allied fields. Although the number of ICOs have recently, as Mr. Peikin suggested, “exploded from a mere concept to a phenomenon.” It is still like any other industry, a perilous venture.
“The growth in the ICO market can obscure the fact that these offerings are often high-risk investments,” he warned. “The issuers may lack established track records. They may not have viable products, business models, or the capacity for safeguarding digital currencies from theft by hackers. And some of the offerings can be simply outright frauds.”
The industry has been crying out for stricter regulations and any cross-border backing that hinders the acts and actions of those with nefarious intentions, is always welcome. Whether this is a one-off act or the building blocks of a shared future remains to be seen.