1.10 - Securities and Exchange Commission (SEC)
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NOTE: THE SEC IS RAPIDLY PRODUCING TESTIMONY / GUIDANCE / ALERTS / ENFORCEMENT ACTIONS IN THIS SPACE. THIS PAGE MAY NOT BE ENTIRELY UP TO DATE. PLEASE DO YOUR OWN RESEARCH AND SEEK THE ADVICE OF AN ATTORNEY.
The SEC has provided limited formal guidance (i.e., formally implemented regulations that have gone through public notice and comment before being published in the Code of Federal Regulations) on its view of various forms of digital assets such as new cryptocurrencies, altcoins, coin offerings, tokens, airdrops, and NFTs. Instead, the SEC has applied existing regulation to these new technological innovations — and the behavior of their creators — while issuing numerous public statements, investor alerts, and most prolifically, instituting enforcement actions. Of all federal agencies, the SEC has been the most prolific so far in addressing this field.
To the great frustration of market participants on all sides, however, in issuing public statements or informal guidance, individual speakers who hold high level positions at the SEC disclaim that such statements represent the views of the SEC; and when made by a department within the SEC, the department disclaims that the statements represent the views of the SEC itself, and should not be relied on in the same way as a law or rule. This refusal on the part of the SEC to commit to rulemaking in this area, or to issue guidance fully endorsed by the SEC, has led to significant confusion in the market.
If there is one guiding star to the SEC’s approach, however, it is to apply the Howey test to determine whether the digital asset is an “investment contract.” The test comes from , 328 U.S. 293 (1946). The case arose from the SEC’s attempted enforcement of Securities Act of 1933 against a citrus grove. The grove was selling small plots of land in its grove coupled with a services contract for that plot’s maintenance by the grove. The SEC argued the arrangement was actually an investment contract that had not been registered and was not exempt.
The U.S. Supreme Court established the following test to determine whether the arrangement at issue, and any business arrangement, was an “investment contract” as defined by of the Securities Act of 1933:
“In other words, an investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise.”
, 328 U.S. at 298-99. This test, the Court further explained was meant to be flexible, “one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” , 328 U.S. at 299.
Practitioners should note that in Howey the Supreme Court specifically rejected the notion that an arrangement is not an investment contract merely because it “is not speculative or promotional in character and where the tangible interest which is sold has intrinsic value independent of the success of the enterprise as a whole.” Id. at 301. Rather, if the “the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others,” then “it is immaterial whether the enterprise is speculative or non-speculative or whether there is a sale of property with or without intrinsic value.” Id. This caveat may have particular application to altcoins, NFT projects, and DAOs, among others.
Thus the SEC uses this test to determine whether digital assets contain, in the words of Howey, the classic “elements of a profit-seeking business venture,” namely that “investors provide the capital and share in the earnings and profits; the promoters manage, control and operate the enterprise.” Id. at 300. The ways in which the SEC has discussed and applied the Howey test to specific digital asset issues are discussed below.
Prior to 2021, the SEC’s remarks on digital assets and cryptocurrency were relatively few and far between. The notable exceptions are a statement from former SEC Chair Jay Clayton, warning investors (both individual and professional) to be extremely wary of initial coin offerings as, as none were registered with the SEC and thus did not have the concomitant disclosure protections of registered securities filings. See Jay Clayton, (2017.12.11). He also cautioned professionals in particular to make upfront determinations about whether securities laws apply to a particular use case, and noted that in his view most ICOs to date were securities offerings.
In 2022, Gensler has appeared before Congress multiple times, in addition to giving several public statements, largely reiterating an expansive view of what constitutes a security.
Although the SEC has provided limited formal guidance in the form of proposed rulemaking subject to notice and comment periods, it has issued several statements that may prove helpful to those seeking to divine how the SEC will evaluate their endeavors.
Note that the FinHub specifically disclaims that its views represent those of the entire SEC, noting that the document “is not a rule, regulation, or statement of the Commission, and the Commission has neither approved nor disapproved its content.”
FinHub also denotes nearly a dozen countervailing factors that would weigh in favor of the digital asset not being an investment contract. Among others, those factors include that the digital asset is fully developed; is readily exchangeable for existing goods or services; if a virtual currency, it is readily usable to make payments in many contexts; and it is not expected to appreciate materially, or any such appreciation would be incidental to its functionality.
Note that the Division of Trading and Markets specifically disclaims that its views represent those of the entire SEC, noting that the document “is not a rule, regulation, guidance, or statement of the [SEC] or FINRA, and the [SEC] and FINRA’s Board have neither approved nor disapproved its content. This statement does not alter or amend applicable law and has no legal force or effect..”
In their joint statement, the SEC and FINRA (the “Staffs”) address entities that engage in providing access to digital assets by serving as a broker-dealer. They divide these broker-dealers into two categories: custodial and non-custodial. For non-custodial broker-dealers of digital assets, the Staffs note that “[g]enerally speaking, noncustodial activities involving digital asset securities do not raise the same level of concern among the Staffs, provided that the relevant securities laws, SRO rules, and other legal and regulatory requirements are followed.” (emphasis added). In this scenario, the broker-dealer merely connects the buyer and seller and the buyer and seller settle the transaction directly.
The meat of the statement by the Staffs deals with broker-dealers who actually take custody of digital assets. In this scenario, the broker-dealer must comply with the Customer Protection Rule. But as the Staffs acknowledge, this area is fraught with difficulty because “custody” on the blockchain is fundamentally different that custody of traditional securities. As the staffs readily acknowledge, a broker-dealer may even “face challenges in determining that it, or its third-party custodian, maintains custody of digital asset securities” due to the fact that having private keys to a digital asset wallet does not necessarily ensure that the broker-dealer alone can transact from the wallet or reverse mistaken transactions. (The Staffs do not address how multi-signature wallets might affect its analysis.) The Staffs go on to raise a number of other questions broker-dealers should consider, including:
maintaining books records,
auditing,
the Securities Investor Protection Act and its different definition of a security, and
control locations
The Staffs do not provide answers to the questions they raise, but do invite firms to contact them directly to work through these issues.
Note that the Division of Examinations specifically disclaims that its views represent those of the entire SEC, noting that the document “is not a rule, regulation, or statement of the [Commission.] Te Commission has neither approved nor disapproved its content.”
The alert specifically focuses on compliance obligations of investment advisers, broker-dealers, and transfer agents and the areas the division will focus on during examinations. For investment advisers, the division says it will focus on: portfolio management; books and records; custody (including access to private keys and unauthorized transactions); disclosures; pricing client portfolios; and registration issues.
For broker-dealers, the focus has some overlap with investment advisers, but expands to include: safekeeping of funds and operations; registration requirements (particularly applied to affiliates); anti-money laundering (including OFAC compliance, filing suspicious activities reports, and performing customer due diligence, also known as KYC or “know your customer”); offerings (including due diligence and disclosures related to a digital asset offering); conflicts of interest; outside business activities (e.g., registered representatives offering digital asset services separately from their broker-dealer employer).
For national exchanges, the division will focus on whether the exchange is required to, and actually has, registered as an exchange pursuant to the Exchange Act and evaluate its compliance with Regulation ATS, the regulation that exempts alternative trading systems from registration requirements but imposes requirements to protect confidential subscriber trading information.
Finally, for transfer agents, the division says it will focus on whether the agent is following SEC rules “that are intended to facilitate prompt and accurate clearance and settlement of securities transactions,” and of course whether the agent has properly registered with the SEC.
Compliance officers at any company in, or potentially within, the purview of these regulations would do well to shore up their policies, procedures, and internal auditing in advance of an examination.
Not long after the birth of the Ethereum blockchain in 2015, Slock.it developed and implemented one of the first decentralized autonomous organizations (a “DAO”) to operate on the blockchain. The concept was that individuals could exchange ETH (the currency on the Ethereum blockchain) for The DAO tokens which gave the owners voting rights and other privileges in the organization, which would largely operate autonomously once voting rights were exercised through code. Among token holders’ rights was the ability to vote for projects to use portions of the pooled funds raised from selling The DAO tokens. Token owners could not vote on projects, however, until Slock.it’s appointed Curators whitelisted (gave approval) to a project to proceed to a vote.
Although the report is helpful in the sense that it provides a detailed analysis of a DAO project under Howey — definitively concluding The DAO tokens were securities — it is unhelpful in the sense that it offers no explanation for why the “conduct and activities known to the Commission” were insufficient to warrant an enforcement action at the time.
Outright fraudulent offerings are similarly likely to draw SEC enforcement:
Sources are listed in reverse chronological order.
Roughly six months later, William Hinman, then-Director of the Division of Corporate Finance, gave remarks at the Yahoo Finance All Markets Summit, which have been subject to controversy almost since they were made. See William Hinman, Remarks at the Yahoo Finance All Markets Summit: Crypto, (2018.06.14). In those remarks, Hinman remarked that neither Bitcoin nor Ethereum were likely securities, since they were sufficiently decentralized. He also noted that digital asset projects that start as securities could later transform into non-securities, depending on the level of their decentralization.
The remarks caused controversy on two fronts. First, they seemed to grant preferential status to Bitcoin (then roughly 9 years old) and Ethereum (barely 2 years old), to the exclusion of numerous other cryptocurrency projects. Second, it introduced an unusual concept of digital assets’ status as securities changing over time, depending on the assets’ properties. Although Hinman gave the usual disclaimer that his remarks were not the view of the SEC, significant industry players, most notably Ripple Labs, Inc., claimed to rely on the statements in guiding their compliance decisions in the absence of other guidance from the SEC. On December 22, 2020, the SEC filed suit against Ripple. Hinman’s remarks have been the subject of much argument throughout the litigation. See , No. 20-cv-10832 (S.D.N.Y. 2020.12.22).
That reliance may in part be due to then-Chairman Clayton's own remarks. Indeed, he testified before Congress that the process Hinman identified was "the approach staff takes to evaluate whether a digital asset is a security." Jay Clayton, (2018.06.21). He reiterated that statement two months later in a speech:
From the latest SEC filing: “The Speech was not binding SEC policy--that is, a pronouncement of the Commission itself, the Commissioners appointed by the President with the Senate’s advice and consent.” The head of the Commission:
— Eleanor Terrett (@EleanorTerrett)
Jay Clayton, (2018.08.29). Shortly afterwards, however, Clayton issued a statement that, at least arguably, implicitly retracted this endorsement, noting that "all staff statements are nonbinding and create no enforceable legal rights or obligations of the Commission or other parties." Jay Clayton, (2018.09.13).
Since his appointment by President Biden in April 2021, Chairman Gary Gensler has made numerous statements regarding the SEC’s priorities with respect to cryptocurrency and enforcement of the securities laws in the digital asset space. Starting in September 2021, Gensler testified before the Senate Committee on Banking that “large parts of the field of crypto are sitting astride of — not operating within — regulatory frameworks,” commented that it was akin to “the Wild West or the old world of ‘buyer beware’ that existed before the securities laws were enacted,” and gave a high level overview of the areas of the field the SEC was looking to regulate. See Gary Gensler, , at 5 (2021.09.14). Those included: (1) crypto tokens, (2) crypto exchanges and lenders, (3) stablecoins, (4) investments offering exposure to crypto assets, and (5) custody of crypto assets. Id. at 5–6.
Gensler also noted the SEC was working with the CFTC because the two agencies had “overlapping jurisdiction” of certain crypto assets, and also with “the Federal Reserve, Department of Treasury, Office of the Comptroller of the Currency, and other members of the President’s Working Group on Financial Markets.” His testimony highlighted the rapidly intertwining regulatory landscape and the need for crypto companies to stay abreast of the guidance from multiple federal agencies. Emphasizing the significant enforcement actions the SEC had already taken, Gensler concluded by noting that “the probability is quite remote that, with 50, 100, or 1,000 tokens, any given platform has zero securities.” Id. at 6. Gensler repeated the same testimony before the House Committee on Financial Services several weeks later. See Gary Gensler, (2021.10.05).
Speaking to the industry directly, Gensler appeared at DC Fintech Week on October 21, 2021. There Gensler provided only cursory acknowledgement of some of the biggest innovations brought on by crypto technology, providing no guidance on the SEC’s regulatory priorities. Instead, he offered only the vague statement that “[a]s new technologies come along and change business models in finance, we need to continue to work toward our public-policy goals,” namely protecting investors, maintaining efficient markets, facilitating capital formation, and policing illegal activity, ensuring financial inclusion and access, and promoting financial stability. See Gary Gensler, (2021.10.21).
Late in 2021, Gensler prepared a statement responding to the President’s Working Group Report on Stablecoins. See Gary Gensler, (2021.11.01). (Details about that report are discussed separately .) Gensler’s statements were brief, noting simply that the report concluded some stablecoins “may be securities, commodities, and/or derivatives,” that stablecoins could assist those looking to avoid anti-money laundering, tax compliance, and sanctions, and that the SEC would work with the CFTC “deploy the full protections of the federal securities laws and the Commodity Exchange Act to these products and arrangements, where applicable.”
Gary Gensler, (2022.09.15)
Gary Gensler, Speech, (2022.09.08)
Gary Gensler, (2022.05.17)
Gary Gensler, (2022.05.17)
Gary Gensler, (2022.05.11)
Gary Gensler, (2022.04.04)
In September 2022, he suggested informally that after Ethereum moved to a proof-of-stake consensus mechanism, it may satisfy the Howey test. See Paul Kiernan & Vicky Ge Huang, (2022.09.15).
First and most importantly, the Strategic Hub for Innovation and Financial Technology (“FinHub”), a division of the SEC released a report discussing how it would approach defining an “investment contract” under Howey for digital assets. See SEC, Strategic Hub for Innovation and Financial Technology, (2019.04.03).
There, the FinHub notes that the first two prongs of the Howey test — investment of money and a common enterprise — are usually met. The focus therefore, according to FinHub, is on whether there is a reasonable expectation of profits derived from the efforts of others. FinHub divides that prong into its two component parts and lists some two dozen factors that are relevant to each, based largely on the activities of what it calls an active participant (“AP”), defined as a “promoter, sponsor, or other third party” of the digital asset. According to FinHub, the more each factor is present, the more likely it is these components of the Howey test are satisfied. In broad strokes, the more active the involvement of the promoter will be after the sale (e.g., completing a roadmap to add value to the asset in the future) and the more promotion of the asset as transferable and likely to appreciate there is, the more likely it is that the digital asset satisfies the definition of an investment contract.
The SEC’s Division of Trading and Markets, together with the Financial Industry Regulatory Authority (“FINRA”) issued a joint statement on key issues in intermediation and custody of digital assets, particularly as it relates to applying the Customer Protection Rule to digital assets. SEC & FINRA, (2019.07.08). The Customer Protection Rule is more formally known as .
The SEC’s Division of Examinations issued a Risk Alert in early 2021 regarding digital asset securities and specific considerations for firms involved in the space to consider in advance of a specific regulatory examination. SEC, Division of Examinations, (2021.02.26).
After announcing The DAO, the project gained considerable attention and enthusiasm from potential investors. After opening the sale of its tokens to the public in mid-2016 (of which there was an unlimited supply), The DAO raised what was then the equivalent of $150 million USD in ETH in a month. Unfortunately, shortly after the ability to buy tokens was closed, a hacker exploited The DAO’s code to siphon nearly one third of the ETH raised into a subsidiary or “child” DAO. Eventually, to resolve the hack and restore the lost ETH to investors, Slock.it and Vitalik Buterin proposed a hard fork to the Ethereum blockchain, which was eventually approved by the numerous users of the blockchain, restoring the stolen investment. (This very brief history is derived from Laura Shin’s heavily researched account in .)
About a year later, in 2017, the SEC caught up to what had very rapidly taken place and issued a report on The DAO but declined to initiate an enforcement action “based on the conduct and activities known to the Commission at this time.” SEC, Exchange Act Rel. No. 81207, (2017.07.25).
The report took The DAO to task for very clearly being an issuance of unregistered securities, particularly as it related to the “reliance on the efforts of others” prong of the Howey test. at 12–15. The SEC focused on the fact that Slock.it and the Curators exercised significant managerial control over The DAO that vastly overshadowed the limited utility of the voting rights of token holders. Indeed, as the report notes, “DAO Token holders could only vote on proposals that had been cleared by the Curators” — Curators who were chosen by Slock.it and could only be removed (or new ones added) through a process controlled by the existing Curators. at 13, 14. The vast dispersal of The DAO token holders and lack of a way to communicate easily with other holders led the SEC to conclude that the voting rights were “akin to those of a corporate shareholder.” at 15. The report concludes by exhorting entities (including individuals) that issue such securities to register the securities, and new exchanges created for their trading, or face the consequences. at 15–18.
The SEC’s cyber division has engaged in at least against actors in what it categorizes as “digital asset/initial coin offering” since 2013, more than all other cyber categories combined. The bulk of those actions were brought in the last three years. By comparison, the other categories had extremely few actions over the same period: account intrusion (4), hacking/insider trading (7), market manipulation/false tweets/fake websites/dark web (13), regulated entities – cybersecurity controls and safeguarding customer information (7), public company disclosure and controls (4), trading suspensions (20). And of the 20 trading suspensions, 16 were against cryptocurrency or blockchain focused companies.
Because many of these actions resulted in quick settlements (or totally collapsed enterprises), their precedential nature is often limited to an understanding of what alleged facts triggered the SEC to bring such actions. As the header on its webpage suggests, however, an “initial coin offering” will almost certainly trigger such an action. See, e.g., (2021.06.22); , File No. 3-20398 (2021.07.14).
More recently, the SEC has announced it will be scrutinizing NFTs that appear to operate similarly to ICOs. See, e.g., Matt Robinson, (2022.03.02). It remains to be seen what the SEC will conclude from that investigation or what impact it will have on NFT marketplaces like OpenSea and LooksRare. In response to the investigative requests, a bipartisan group of members of Congress to the SEC demanding information about the scope of the SEC’s use of voluntary investigative requests to obtain information from blockchain and crypto firms over the last five years. The letter also commented that the SEC’s use of the Division of Examination and Division of Enforcement’s authority to obtain the information was “better suited to the SEC’s divisions charged with seeking public commentary as part of the rulemaking process.”
(2021.08.06);
, No. 5:21-cv-01307 (C.D. Cal. 2021.08.04);
, 21 Civ. 0529 (E.D.N.Y. 2021.02.01);
, No. 1:20-cv-10849 (E.D.N.Y. 2020.12.22).
Harder questions arise with the establishment of new blockchain / distributed ledger networks and the tokens or cryptocurrencies that exist on them. The SEC’s suit against Ripple Labs, Inc. for issuing unregistered securities in the form of its XRP token raises a number of serious questions for those involved in large-scale crypto projects. See , No. 1:20-cv-10832 (S.D.N.Y. 2020.12.22). There Ripple raised money to fund its operations, and to implement a use-case for its XRP tokens, through two avenues: (1) traditional equities offerings in the company; and (2) public sales of the XRP tokens. The SEC took issue with the token sales, focusing on the lack of any practical use for the tokens at the time of sale, the promotion of the tokens as an investment, and the information asymmetry between Ripple’s founders (who directed the sales) and those purchasing the tokens. Ripple is actively defending the suit and it remains pending.
More recently, the SEC has focused on (proposed) crypto lending platforms. These enforcement actions focus on the fact that both the Securities Act and the Exchange Act include in their definition of a security “any note,” a common phrase for documentation for a loan. See (Securities Act); (Exchange Act).
Courts have narrowed “any” down to exclude a number of common consumer transactions such as mortgages and unsecured bank loans, judicial exceptions that were accepted by the U.S. Supreme Court in , 494 U.S. 56 (1990). Absent a judicial exception under the “family resemblance” test of Reves — i.e., the note is similar to an existing exception, or the litigant convinces the court to adopt a new exception — however, a note would remain a security under either the Securities Act or the Exchange Act. at 64–66.
The Court later further clarified that a fixed rate of return does not prevent an instrument from being a security. See , 540 U.S. 389, 396 (2004) (discarding footnote 4 of Reves as “passing dictum that would frustrate Congress’ intent to regulate all of the ‘countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.'” (quoting , 328 U.S. 293, 299 (1946))). Despite the exceptions, however, the presumption is that “any note” is a security until proven otherwise. , 494 U.S. at 65 (“[W]e begin with a presumption that every note is a security.”).
Utilizing this framework, the SEC has thus sought in late 2021 and early 2022 to require crypto firms to register fixed income offerings as securities, or to threaten them with enforcement actions if they will not do so. Thus Coinbase, after receiving a Wells notice from the SEC of an imminent enforcement action related to its Lend program, decided to scrap it. See Mitchell Clark, (2021.09.20). And Blockfi, which proceeded with its crypto lending product for some time, agreed to pay $100 million in fines to the SEC and to 32 states and to register its lending product as a security under the Securities Act. , File No. 3-20758 (2022.02.14).
Despite many of the SEC’s divisions issuing written guidance, some of its members making public statements, and engaging in numerous enforcement actions, so far the SEC has not proposed any rules directly targeted at crypto firms. It has, however, proposed one rule that has caused a significant amount of alarm among crypto firms and enthusiasts alike. See SEC, Proposed Rule, (2022.01.26) (comments due 30 days after publication in ; published on 2022.03.18).
That alarm arises primarily from a proposed change to the definition of an “exchange” under the Exchange Act. More specifically, how the SEC proposes to interpret the existing definition of exchange in the Act, since the SEC cannot unilaterally amend the Act itself. The changed definition would expand an exchange to include not just platforms that match buyers and sellers of securities based on specific, firm orders, but would “include systems that offer the use of non-firm trading interest and communication protocols to bring together buyers and sellers of securities.” Id. at 1. Thus, the change could potentially encompass many businesses in the crypto space (particularly those that develop/deploy/make available automatic-market making protocols) and require them to register as an Alternative Trading System of securities under Regulation ATS. See, e.g., Gabriel Shapiro, (2022.01.27). Read as broadly as currently worded, it could even potentially encompass completely unrelated businesses that provide a forum for people interested in discussing digital assets that result in negotiations of securities trades (e.g., Reddit, Telegram, Discord).
The changed definition would mark a dramatic broadening of the SEC’s regulatory ambit, so much so that Commissioner Hester Peirce issued a dissenting statement simultaneously with the rule’s proposal. See Hester M. Peirce, (2022.01.26). According to Peirce, the proposal is so broad that “those who operate any service that is designed to facilitate any communication between potential buyers and sellers of any type of security” should immediately read the release because “[e]ven if you have nothing to do with government securities or even fixed-income, or with traditional securities, . . . . [the release] covers a lot of ground, and you should not assume that it has nothing to do with you, because it probably does.”
Although published in the only on March 18, 2022 (and thus triggering the 30-day deadline for public comments), the proposal has already received opposed to the rule (and the short period for comments), including by crypto trade groups and businesses, law firms, think tanks, and private individuals.
Another rule that has drawn scrutiny from the crypto industry is one that would expand the definition of "dealer" in the Exchange Act in a way that would largely eliminate the distinction between a "dealer" and "trader." See SEC, Proposed Rule, , 87 Fed. Reg. 23054 (2022.04.18) (comments closed 2022.05.27). The proposed rule focuses on making traders who provide significant liquidity to the market, who are currently not required to register with the SEC, do so. The result is that the rule could encompass liquidity providers in decentralized finance protocols, i.e., automated market makers or AMMs, to have to register as securities dealers, since the proposal is not limited to particular asset classes or markets. The only reference in the lengthy proposal, however, appears in footnote 36, which states that the proposed rule "would apply to government securities as defined by . . . the Exchange Act, including any digital asset that is a security or a government security within the meaning of the Exchange Act." Id.
How exactly a decentralized protocol could register as a dealer is not covered by the rule, nor the precise scope of the rule as applied to digital assets. Is it only "government securities"—the first part of the phrase about its application—which would seem to cover few if any digital assets, or would the SEC interpret the rule truly to mean "any digital asset that is a security"? This ambiguity, along with the risk of punishing penalties (including criminal penalties) for violations of the provision have caused some to suggest enactment of the rule could undermine investment in this emergent technology. See, e.g., Cheyenne Ligon, , CoinDesk.com (2022.03.28)
SEC, (Continuously Updated)
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, 540 U.S. 389, 396 (2004)
, 494 U.S. 56 (1990)
, 328 U.S. 293 (1946)
This article was drafted by .