Yesterday the US Securities and Exchange Commission (SEC) published guidance on the application of disclosure requirements to crypto-asset securities issuances. It acknowledged that this is an interim step while the SEC Crypto Task Force works on comprehensive guidance. Issuers are expected to comply for the issuance of debt or equity, or a crypto-asset token which is an investment contract at the point of issuance.
Commissioner Peirce has previously noted that many cryptocurrency tokens might be investment contracts subject to securities laws at the point of issuance, but subsequently evolve into commodities. Precisely how that transition is assessed remains to be seen.
The latest guidance might be described as a layman’s guide of what is expected in an S-1 filing, which is made for a securities issuance. However, there are a few points that will particularly impact crypto projects.
Securities: Disclosures that crypto firms need to adapt to
For example, we’ve seen a few crypto projects where the description appears overly technical. The SEC says the business description must be “presented in clear, concise, and understandable language, without overly relying on technical terminology or jargon.”
Some crypto projects have pseudonymous founders. The problem is someone who is extremely dodgy and has been convicted of crimes will embrace the opportunity to take on a pseudonymous persona. While the guidance doesn’t mention pseudonymous founders, it clarifies that officers have to be identified, including those that may not have formal roles but “perform policy-making functions”.
Beyond the very early stages, the issuers of most cryptocurrencies don’t know the identities of the token holders. But at the point of issuance they at least know their wallet addresses. Securities laws require there to be a record of ownership, and the issuer has to disclose where that record is held. This will require crypto firms to get more investor data at issuance and could prove tricky in the early stages of secondary market trading.
Another topic that many crypto firms don’t really address, is what happens if the project fails. Who has the rights to what? That’s something that securities disclosures demand. Additionally, many crypto projects when issuing tokens are often vague about who owns the equity in the issuer. Again, that does not fly in a compliant world.
These new disclosure expectations represent just one element of the SEC’s evolving approach to cryptocurrency regulation under the new leadership of Acting Chair Uyeda. The first action was to rescind SAB 121 that prevented banks from providing digital asset custody. It has provided guidance on meme coins, crypto mining and stablecoins. Plus, it created a crypto taskforce, which held the first of several crypto roundtables, and it withdrew from various legal cases.
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