SEC Regulation A may present an attractive financing option for issuers of "token" securities. However, issuers should expect that the SEC will be closely monitoring activity in this space and will take swift action if it has concerns about potential investor harm.
The SEC's Divisions of Enforcement and Trading and Markets put forth a “Statement on Potentially Unlawful Online Platforms for Trading Digital Assets” regarding the legal ramifications of such platforms operating as “exchanges,” as defined by the federal securities laws. Such a designation requires that the platform must register with the SEC as a national securities exchange or be exempt from registration -- practically meaning registration as an alternative trading system (“ATS”). Each road to registration is fraught with its own pitfalls that need to be carefully examined but for those entities already in operation and potentially within the crosshairs of the SEC, the only viable business option is to try to register as an ATS.
An issuer of a coin or token in an initial coin offering “generally” is a money transmitter under Financial Crimes Enforcement Network’s regulations, FinCEN indicated in a letter it made public on March 6, 2018.
On March 7, 2018, the SEC’s Enforcement Division and its Trading & Markets Division issued a joint “Statement on Potentially Unlawful Online Platforms for Trading Digital Assets.” The release appeared to be the strongest signal yet of a broadening of the SEC’s enforcement and regulatory interest beyond its focus since last year on the need for certain coin offerings to be registered or to qualify for an exemption as private placements.
 Available here: https://www.sec.gov/news/public-statement/enforcement-tm-statement-potentially-unlawful-online-platforms-trading.
This is a reminder that May 11, 2018 is the deadline for implementing new Financial Crimes Enforcement Network (FinCEN) requirements under the Bank Secrecy Act. The requirements apply to a wide swathe of financial institutions, including securities broker-dealers, banks, mutual funds, and futures commission merchants and introducing brokers in commodities. These enhancements to anti-money laundering programs (AML) are often referred to as “Customer Due Diligence” (CDD) requirements.
On March 6, 2018, in a decision on the CFTC’s motion for a preliminary injunction and the pro se defendant’s motion to dismiss, United States District Court Judge Jack Weinstein in the Eastern District of New York ruled that virtual currencies are “commodities” as that term is used in the Commodity Exchange Act and CFTC Regulations. Moreover, the court confirmed that a provision added to the CEA by the Dodd Frank Act, and regulations promulgated thereafter, provide the CFTC with jurisdiction over fraudulent transactions in the cash market for virtual currency even if the activity does not involve a futures or swap trade.