Regulation
Hundreds of startups are reportedly being “secretly” targeted by the U.S. Securities and Exchange Commission for their involvement with initial coin offerings. Companies that participated in ICOs are now scrambling to clarify whether their token constituted a security, and, if so, whether it was properly registered with or exempted by the SEC.
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SEC ‘Tightens the Noose’ on Startups That Used an ICO
Yahoo Finance and Decrypt claims that “Hundreds of startups that did token sales are finding out they’re in violation of securities law— including many that were sure they did it the right way.”
The auspicious beginning of the present year came with subpoenas, characterized by the Commission as informational in scope. There appears to be more than mere cataloging of the crypto landscape, as “the Securities and Exchange Commission has significantly widened its crackdown on certain initial coin offerings, putting hundreds of cryptocurrency startups at risk.” The agency “has returned to many of those companies, and subpoenaed many more—focusing on those that failed to properly ensure they sold their token exclusively to accredited investors,” Decrypt notes.
Formal litigation can be costly, taxing a given regulatory bureaucracy’s workload and clogging up courts and judges. It also appears the agency is at first moving to have suspected companies in violation settle. “In response,” Roberts explains, “dozens of companies have quietly agreed to refund investor money and pay a fine. But many startups that have been subpoenaed say they are left in the dark struggling to satisfy the SEC’s demands, and are uncertain of how others are handling it, according to conversations with more than 15 industry sources.”
IPOs Died in the US, Startups Resorted to ICOs
Compounding matters is how this widespread investigation was unearthed: anonymous sources due to the fact the agency formally “restricts them from discussing the matter,” Decrypt insists. Initial coin offerings are a twist on initial public offerings, IPOs, which have been effectively strangled out of existence in the United States within just the last few decades. Legacy American stock markets, for example, have something close to half the number of public companies listed as they might have otherwise.
Saddled with regulations, barriers to entry and countless legal frictions only hordes of lawyers can battle, smaller companies have been priced out of the IPO model for bringing a business to public market in the US. Instead, those that might have participated at one point wait in the queue at merger and acquisition wings of established juggernauts. That, or they leave the US altogether and try their hand in places such as Hong Kong, which has, sure enough, seen an IPO boom recent years.
ICOs, then, are at least part of a response to that environment. Unaccredited investors, with minimal friction, have accomplished in ICOs at least two things most analysts agree: financial democratization and innovation, but at the expense of a wildcat space filled with scams. A startup can in a manner of clicks become presentable enough to sell a proprietary digital token quickly.
A Game of Definitions
About a month after subpoenas were sent by the agency, Chairman Jay Clayton seemed to make the regulator’s opinion going forward very clear. During a Senate hearing on the subject of cryptocurrencies, Clayton stated flatly, “I believe every ICO I’ve seen is a security.” But what constitutes an ICO then becomes the question if every initial coin offering is subject to their jurisdiction. The agency “does not care” about semantics, the report scolds, even though some “companies that did ICOs called their offering something else, such as a ‘utility token’ or a ‘SAFT’ (Simple Agreement for Future Tokens, an ICO method in which investors buy a reservation for tokens yet to be launched).”
Due to the cat and mouse nature of the space, “It is hard to say precisely how many ICOs occurred during the past four years,” Decrypt acknowledges. Thousands for sure, and more than “$20 billion has been raised in ICOs to date, but the ICO boom peaked in January 2018. Concerns over the legality of token sales have had a chilling effect.”
However, it is well known that all US firms anywhere near to offering a security are governed by the SEC in one form or another. And the agency does offer a formal exemption which asks participation be limited to vaunted “accredited investors” who earn more than $200,000 per year, for two years, and hold a net worth of at least $1 million – factors that probably led the company to seek an ICO in the first place. At that same Senate hearing, Clayton was asked how many had sought SEC approval. The answer came back ominously: almost none.
Will the SEC sorting out ICOs lead to a positive outcome for crypto markets? Let us know in the comments below.
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