04.30.2019
By Rob Daly

SEC’s Digital Asset Framework Falls Short

Since the Securities and Exchange Commission’s FinHub issued its analysis framework for digital investment contracts approximately a month ago, the long-awaited guidance likely has extended the digital asset winter rather than ending it.

Congressional pressure and the high-profile Airfox and Paragon Coin enforcement acts in the latter half of 2018 pushed the regulator to roll out additional guidance, noted Kristin Boggiano, chief legal officer at AlphaPoint, during an open call hosted by the STA Foundation and moderated by James Toes, president and CEO of the Security Traders Association.

Until the SEC issued its framework, firms considering initial coin offerings needed to navigate the four-prong Howey Test, which defines a security as an investment of money with a reasonable expectation of profit delivered from the efforts of others.

However, the lack of further guidance has left many questioning when to apply the test.

The new framework introduced 65 new tests that stress Howey’s “effort of others” component.

“It also introduced a completely new concept of ‘active participants,’ which never existed before,” said Boggiano.

Among the framework’s question are whether the purchaser relies on the active participant; if the active participant’s efforts are undeniably significant; and whether the active participant is responsible for the offering’s development?

Further complicating potential ICOs, the framework is nothing but the view of the SEC staff and is not binding on the SEC or its divisions, according to the authors of the framework.

Such uncertainty has sent many to many to set up their digital asset offering offshore into the arms of other national regulators that want to replace the United States’ dominant position in the market, according to Boggiano, who is tracking regulations in 15 markets as well as helping one unnamed country develop its regulatory framework.

Although the US capital markets are the soundest, it has not stopped other nations with similar sound markets, such as the UK, from actively recruiting fintech companies and investors to partake in their regulatory regimes.

“Time will tell if it is Switzerland, the UK, or somebody else displaces the US, but there is definitely a lot of effort internationally to take away the US dominance in this space,” she added.

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