The Securities and Exchange Commission’s recent barrage of crypto-related firms and investments with enforcement actions tells a story that has long been a mystery to many. Two of these prominent cases made headlines in June. The first, a case against a social media platform, Kik, and Kin foundation – the foundation governing the operations of the Kin ecosystem. The second was against Longfin Corp, a fintech company that “offers commodity trading, alternate risk transfer, and carry trade financing services.”.
While many expect more of such crackdowns, the back and forth between the SEC and these companies have somewhat opened fresh controversies surrounding the viability of the regulatory framework governing digital securities and tokens. In light of this, it is important to examine the arguments from both sides of the divide to fully acknowledge the critical nature of the situation and its implications on America’s investment landscape. But first, let’s explore the actions/inactions of Kik and Longfin that might have forced the SEC to sue them.
SEC vs Longfin
In April 2018, the SEC froze the trading profits generated from the sales of Longfin’s stock, which the regulator accused of selling unregistered shares after acquiring Zidduu.com (a crypto trading company). In June 2019, SEC filed fraud action against the same company and its CEO, Venkata S. Meenavalli. The released complaint claimed that Meenavali had “conducted a fraudulent public offering of Longfin shares” by misleading investors on the financial standing and mode of operation of its company’s crypto-related business.
SEC vs Kik
On June 4, 2019, the SEC officially took legal action against Kik Interactive Inc. for conducting an illegal $100 million securities offering of digital tokens back in 2017. If you will recall, Kik was one of the many companies that capitalized on 2017’s ICO boom to raise money for its blockchain ecosystem. SEC asserted that Kik’s fundraising campaign was illegal because the company sold $55 million worth of tokens to US investors without registering the offers or sales.
Secondly, the complaint alleged that at the time of the fundraising campaign, none of the products and services that Kik had implied would drive the demand for Kin tokens did not exist. Also, the watchdog claimed that the revenue-sharing clause that featured in the Kin offering campaign established that the Kin token is a security. This is true since the campaign failed the Howey test as it promised profits “predominantly from the effort of others” to build an ecosystem and drive the value of the token.
And so, SEC based its case on Kik’s failure to comply with the registration requirements under U.S. securities law and the omission of information that would have helped investors make informed decisions. It is worthwhile to note that Kik had released a strong response to SEC’s initial claim.
Although there was no clear framework to guide the conduct of ICOs or digital security offerings in 2017, that has not stopped SEC from litigating companies that had sold digital tokens years before regulators issued guidelines.
The Howey Test Controversy
From the details of the highlighted charges, it is clear that funding a business or company through fabrication or manipulation of information is, by the standard of current securities law, a punishable act. This is also true for investments that do not comply with existing required financial disclosures. However, as argued by David Weisberger (co-founder and CEO of CoinRoutes), the current financial disclosure requirements are not effective when it comes to giving investors insights on the viability of the investments.
In its true sense, existing securities laws only require the disclosure of information about the issuer and its finances. As such, Weisberger argues that there is no way investors would use such information to judge the prospect of digital tokens. Using Kik’s travail with the SEC as a case study, he explained that if Kik had followed due process and complied with registration requirements, it still wouldn’t have given investors a hint that the price of the token would today worth far less than what it had sold for in 2017.
Nevertheless, as SEC puts it in the complaints, before the commencement of the Kin promotional campaign, Kik was in dire need of funds, as its expenses had consistently trumped its revenue. If Kik had informed prospective investors about its financial predicament, many would have had a rethink. As such, there is no doubt that such information would have helped investors to make informed decisions.
Also, SEC’s released a clarification on the Howey test, which explains the factors that determine whether a digital asset is a security or not, showed that many of the tokens out there are securities. Perhaps, the most interesting piece of information in the 13-page document is the one that revealed that companies must have working products before embarking on fundraising campaigns.
Again, this clarification implicates Kik and many of the organizations issuing digital tokens, as it is common practice for startups and established companies to base their ICO campaign on fictional products.
To fully appreciate the controversy surrounding the “security” and “utility” conversation, one must take a look at the origin of the Howey test way back in 1946. Back then, a company, the Howey company, introduced an investment scheme that would allow investors to buy a fraction of its orange groves, with the hope of making returns on the profit made from selling the cultivated oranges.
Following the introduction of this scheme, the SEC, while claiming that the terms of the investment meant that it was security, moved to block the sale. What ensued next was a hard-fought legal battle that dragged to the supreme court. Eventually, the supreme court ruled in favor of the SEC. And so the definition of securities established in this case has since been the de facto framework for defining securities till this very moment.
No respite for digital (utility) token issuers
The commitment of the SEC to establish a standard and enforce securities laws on firms that had once found a way around regulatory structures will undoubtedly change the outlook of the digital asset markets. While some crypto firms have taken up the defensive stance to fight the imposition of these new directives, others are working closely with regulators to establish clear rules and to guarantee investors protection.
There is no doubt that the present regulation narrative is stifling the growth of the crypto sector in this part of the world, as established companies like Coinbase are yet to find their footings. It does not help that even after complying with the SEC’s regulations, companies have to deal with the various regulatory provisions of each state.
But it is also true that things would have deteriorated had regulators chosen to stay on the sideline. For one, the surge of scams that punctuated the ICO era of 2017 would have continued as investors had no means of ascertaining the legality of tokens. Only now some cases are becoming public, such as notorious ICOBox violating securities laws with its 2017 token sale and further activity promoting other initial coin offerings (ICOs) or an extortion case Nerayoff and Hlady. There are many more cases like this that are yet to become public. The SEC’s primary goal is to protect investors. And as argued by CEO and co-founder of Symbiont, Mark Smith, it is up to firms to look for ways to work with regulators to define the fine line between utility and security. This right here is the step forward, rather than the common practice of bypassing existing laws.
Nonetheless, if the SEC were to change its stance and introduce new securities laws, creating a subclass of tokens issued to investors to fund for-profit organizations will go a long way to help the watchdog update the 70 years old Howey test. In turn, the establishment of such an asset class will help the SEC to formulate an adequate framework to govern the exchanges and dealers that trade them.
Interestingly enough, the US House of Representatives has taken the initiative to reintroduce a taxonomy act that would exclude digital tokens from the broad definition of securities. To achieve this, the legislators plan on amending the security acts of 1933 and 1934. Having said that, the implication of such a development, which will be treated in a separate article, would kick-start a domino effect.
— Constantin (@constkogan) October 10, 2019
SEC’s reinvigorated approach to digital tokens and security laws has not come as a surprise. The ICO abuse of 2017 was just an anomaly brought about by the change of guard in SEC’s leadership after the swearing-in of President Donald Trump. For this reason, digital token issuers must ensure that all their operations fall within the confines of the law, as there are no more free passes.
BREAKING: Harvard’s endowment invested $5M – $10M directly into Blockstack’s token sale.
This means that one of the leading university endowments is comfortable holding tokens directly.
THE VIRUS IS SPREADING ?
— Pomp ? (@APompliano) April 11, 2019
P.S. IT’S OFFICIAL!.Ether is a commodity.
Solving the Liquidity Puzzle for Security Tokens – Thought Leaders
There is a wide consensus in the financial industry that blockchain technology is going to disrupt the securities market. However, despite the claims, there is no double-digit annual growth of securities on blockchain, which would be expected from a disruptive technology. The reason for that are regulatory roadblocks that don’t allow delivering the biggest promise of digital securities – liquidity for previously illiquid securities. In this article we break down this problem and present a solution.
What are security tokens/digital securities?
From a legal perspective, security tokens are common securities and are subject to the same regulations. The difference is that records about securities ownership are stored on blockchain instead of paper-based or other forms of records. That’s why they are often called digital securities.
Innovative technology significantly improves operations with securities, making them digital and automated. In particular, transfer of digital securities is much easier and may happen in minutes or seconds instead of weeks, spent on signing physical contracts, doing compliance checks and updating government registers.
Why liquidity is so important for security tokens
Liquidity of an asset defines how easy it can be sold. For example, publicly listed securities are highly liquid, while real estate and startup equity are highly illiquid. Although security tokens have multiple advantages, greater liquidity is a principal one. For this reason, they often represent ownership in traditionally illiquid assets.
Mass adoption of security tokens first and foremost requires interest from investors, which will create incentives for businesses to issue digital securities instead of traditional ones. For investors, lack of liquidity is the biggest problem of securities that are not listed on exchanges as it makes investments in them riskier and makes investors wait for decades until they pay off. Therefore, unlocking liquidity of security tokens is crucial for their mass adoption.
Why is liquidity in the conventional meaning of the word is out of reach for security tokens
In the narrow sense of the world, securities are considered liquid if they are traded on a stock exchange. For this reason, lack of regulated secondary markets is considered the main limitation. However, this ignores the fact that there are already operating exchanges for security tokens: tZERO, Open Finance, MERJ, GSX – but very few tokens are listed there. Furthermore, Open Finance is on the edge of delisting all security tokens because their trading does not generate enough fees to support operations.
Therefore, the problem is not in the lack of marketplaces. It is in fact that listing on an exchange is overly complicated. It requires registering the offering at competent authorities, having minimum trading volume, minimum market cap, being under increased reporting requirements, which often include annual audit. Basically, it requires becoming a public company. These requirements will arise not only in the case of listing on a classical exchange but any kind of regulated market. This means that listing on a regulated trading venue is not feasible for most security token issuers.
Such a flawed understanding of the problem stems from crypto origins of security tokens. They were seen as a regulated continuation of utility tokens and cryptocurrencies, for which listing on exchange is much easier, so it became a synonym for liquidity. This myth should be debunked in order for the market to move to more realistic sources of liquidity.
How is liquidity for security tokens possible?
To answer this question, we need to go back to an original definition of liquidity, which is the ability to quickly sell assets at any moment. It has two main components: complexity of conducting the transaction and how easy it is to find a counterparty.
The former problem is solved by blockchain technology. Its main benefit for private securities is that it vastly simplifies conducting the securities transaction, making it possible to do everything online in a few minutes. Conventionally, transfer of securities would require signing physical agreements, reporting changes to the government register, settling a transaction via a wire transfer, and doing manual compliance checks on individuals engaged into the transaction.
Complexity of the transfer also impacts the number of potential counterparties. When the transfer is complicated and expensive, it becomes not feasible to transact small amounts. This cuts off smaller traders and investors from the market, making it even harder to find a counterparty.
The problem of finding a counterparty is traditionally solved by an order matching mechanism of exchanges, which for security tokens is not feasible. Therefore, the key to unlocking liquidity is in creating an efficient way to find counterparties for transactions that would not be considered a regulated market.
This way is already known. It is a bulletin board for P2P transactions. As these transactions are private and do not involve an intermediary, they don’t require regulation. However, there are a number of nuances and requirements for such a venue not to be regulated, which will be covered in a separate article.
To the author’s knowledge, at the time of writing there is no venue that enables legally compliant and efficient P2P liquidity for security tokens.
What impact unlocking the liquidity of security tokens will have on capital markets?
Currently, venture investors may sell their shares only if businesses they invest into go public or are acquired. This has two implications, which both lead to money being used inefficiently and slow down the economic growth.
Firstly, it means that only businesses with the potential for IPO are worth investing. Businesses that can offer a solid yield but don’t offer “disruption” and outsized returns are deprived of funding. These are often businesses with a need for high capital investments – manufacturing, agriculture, physical infrastructure etc. The problem with a lack of capital investment is covered in a widely discussed article in Andreessen Horowitz blog “It’s time to build”.
Secondly, illiquidity makes VCs prioritize growth over profitability because when most investments don’t pay off even a 10x exit from successful ones may be not enough. It creates incentives to scale even when the business model is not tested enough, leading to extremely large companies, such as WeWork or Uber, struggling to deliver a profit.
The plague of private markets has impacts on public markets as well. It leads to the emergence of the IPO bubble, when more than 80% of newly public companies are not profitable. It is problematic because public securities are considered less risky, and thus fit into portfolios of retail funds and pension schemes, harming them by being overpriced.
Thus, solving the liquidity problem will have a drastic impact not only on the VC industry but on the entire economy.
HODL Your Hoopla Over SEC Changes For Exempt Offerings – Thought Leaders
Last week the The U.S. Securities and Exchange Commission released a proposal – that has yet to become regulation – to simplify how exempt offerings are done. Shortly thereafter, a flurry of articles and newsletters made their way through the digital asset industry – many of which suggested their platforms were already being modified to fit the new rules. While the SEC has proposed changes, time will tell whether the proposal is adopted – and if so, whether there will be changes to the final draft that will be published to the Federal Register.
The US exempt offering framework includes tools such as Reg D, Reg A, crowdfunding (a.k.a. Reg CF) – essentially everything that is not a public or retail offering. This framework has seen little in the way of changes or modernization since the Securities Exchange Act of 1934. There has been significant public criticism of the current rules for exempt offerings, largely because they reserve access for only the wealthiest Americans to invest in private funds, companies, and other offerings.
If passed, the proposed changes could allow for the average person to invest in earlier stage deals – such as Uber or WeWork – before they reach their lofty valuations and dumped into the public markets. Enabling SPV (special purpose vehicles) and harmonized reporting (ie combing Reg D and Reg CF into one, not two reports), and increasing the total amount that can be raised would help streamline compliance for issuing firms. Additionally, the changes could also enable crowdfunding to become a viable capital formation tool for investing in such asset classes as real estate.
Currently, US offering exemptions such as Regulation CF (crowdfunding) are quite restrictive, limiting the total amount you can raise to $1.07M USD per 12 month period and includes significant restrictions per investor. The US SEC appears to be following the lead of other jurisdictions such as Canada where regulators proposed similar changes, or Europe where regulations were updated last year, increasing the limits for the EGP (European Growth Prospectus) to €8M EUR, a little over $9M USD. According to the new proposal, companies would be able to raise up to $5M USD. While $5M is still a relatively small amount of capital, it does allow early stage companies to build their tribe with a broader investor base.
The SEC proposed similar changes to Reg A, increasing the upper limit to $75M USD. This could make Reg A viable for many later stage companies where larger Series B, C, or even D rounds demand more capital than what is currently available in Reg A.. This also opens up these investment opportunities to the retail investor, previously these deals were only available to the wealthiest corporate venture firms, private equity shops, and high net worth individuals.
Further changes include allowing accredited investors to participate in crowdfunding. Previously, if you used a crowdfunding exemption, you could not accept funds from accredited investors and would actually have to use another exemption, such as Reg D, simultaneously. This typically forces companies into more paperwork, legal fees, and an increased risk of getting something wrong – which could result in regulatory or civil actions. The proposed changes would enable companies to combine accredited and retail investors into one offering.
Aside from accredited investors, the changes also open the doors to institutional and corporate investors, including the SPV (Special Purpose Vehicle).
An SPV is a corporate entity created for a specific purpose – usually for reasons such as limiting liability, tax efficiency, investment, or capital formation. For example: In order to tokenize a piece of real estate, you might form an SPV, and transfer the deed to the real estate into this company. The purpose of that company/vehicle is to hold the deed of this real estate and maintain a accurate record of who the owners are, SPVs are commonly used for investment funds as well.
Combined, SPVs, corporate investors, accredited investors, and major institutional investors can move large amounts of capital. However, they weren’t able to invest in crowdfunding offerings in the US. This created an interesting paradox for companies raising capital, if you could get the big fish interested, you would avoid the crowd – but, if your offering didn’t look good enough for professional investors, your last resort may be crowdfunding. The crowdfunding industry as a whole has faced a lot of criticism from professional investors for low returns and low deal quality, this is likely to change when retail investors have access to the same deals as larger institutions.
Finally, the new crowdfunding regulations propose several major changes to how much each investor can put into any one offering. Currently, investors who do not meet the accreditation thresholds were limited on how much they could invest based on the lower of their income or net worth. The new regulations would change this to the greater of those two. These changes are expected to not only fuel innovation, they are likely to bring in a lot of smart money as well.
For example, an investor with a net worth of $750,000 and an income of $150,000 couldn’t qualify as an accredited investor. This person has a Phd in bioscience and finds a startup with a revolutionary innovation in the field of bioscience – they are not qualified as an accredited investor and barred from investing. Ironically, they can be an advisor to any institutional investor on why this particular startup is so hot – but under the current rules, they are not qualified to risk their own money.
While these changes are welcomed by most market participants, they are not a sure thing. This proposal for a new exempt offering framework is not yet regulation, it still has to make it’s way through the government and be entered into the Federal Register. Looking back at the proposals for crowdfunding in the US we can see how different a proposal can be from the regulation – and there are still a lot of lobbying dollars that want to see the status quo maintained. It is important to not make important business decisions based on this proposal – rather, look at these changes as a larger trend among securities regulators globally.
We’re seeing securities regulators trying to make easier for distributed capital formation. Crowdsales and crowdfunding are actually becoming something that the regulators across around the world are working together to harmonize their frameworks. By combining the crowdfunding regulations from jurisdictions around the world, early stage companies would be able to access global capital and build a global investor base, without being forced to break the rules like most of the ICO and STO issuers are doing today.
Perhaps the most exciting thing about the SEC’s proposed changes is how they demonstrate a very coordinated effort among securities commissions globally. As this new era of capital formation emerges, businesses will be able to combine and leverage the regulatory frameworks of multiple countries. That being said, for US based offerings, we still have to wait for the new regulations before knowing what they will look like, or their impact on the digital securities industry.
Why EU blacklisting the Cayman Islands matters for the STO industry – Thought Leaders
On February 18th the European Union added the Cayman Islands to its tax haven blacklist. While this has not made the news in the security token industry, it has had major implications. Due to the strict demands of AML & KYC in many jurisdictions, regulators are focusing more resources on beneficial ownership, tax transparency, and enforcement.
For companies raising capital, the blacklisting means you should not take money from a Cayman fund if you’re a European issuer. In the EU, a lot of the investment in security tokens, real estate, and private equity comes from or through Cayman fund structures. Cayman is also where a large portion of American VC funds are domiciled.
The current tax haven blacklist also includes American Samoa, Fiji, Guam, Oman, Palau, Panama, Samoa, Trinidad and Tobago, US Virgin Islands, Vanuatu, and Seychelles.
Any company taking funds from a Cayman domiciled fund, or working with a platform/issuer/bank in that market should be aware that being associated with a blacklisted country could create significant new risk exposure for your project, and possibly yourself. These changes are effective immediately. Until recently, most firms could fly under the radar but the EU is also rolling out a public registry of corporate ownership. This will not only make non-compliance much easier to spot but also increases the ability for regulators in the EU to investigate and enforce.
The regulation could impact people working at (including directors, officers, or significant shareholders) a company that received funding from a Cayman source after the blacklist date. Enforcement severity changes by country but can include criminal charges, company seizure, and known associates may end up on a variety of sanctions and watch lists. Not to mention the reputational damage.
This is a good example of why a good AML program does not only consist of face matching a document and pinging an API to name match a sanctions list – you are opening up your venture, and most likely yourself, to massive liability. Your legal and regulatory obligation is to take a risk based approach. What that looks like can change by country, transaction value, activity history, etc., so AML program needs to be dynamic, robust, and comprehensive enough to catch things like narrative sanctions.
For example: The most popular security token platforms today only use KYC for digital onboarding of natural persons – not corporate entities. However, when you look at the investors in their previous token issuances you can see that most of the funds are coming from corporate accounts, corporation owned wallets, but the on-chain transaction and KYC is done by an individual. These platforms are missing the technical capabilities to spot transactions coming through blacklisted jurisdictions such as Grand Cayman.
iComply recently helped a virtual asset exchange pass the audits needed to offer their users the ability to spend virtual assets, such as Bitcoin and Ethereum, with a Visa card. This process involved independent audits from Visa, their banks, and regulators – each wanted to see the client demonstrate how they would be able to identify these risks and fulfill the requirements of a whole web of regulations.
Now that they have passed the audit, they are first to market with a very compelling offer compared to their competition who still have months of development on their AML systems before their applications will go through. Using iComply to get ahead of the regulations has also put them ahead of their competition.
We can expect the same for the security token market. Token issuers need to pay close attention to their AML compliance – Telegram had to refund over $1B USD over AML, has spent millions in court with the SEC, and the OCC has not even started with them yet…after that, how many of their “not investors” will be ready to jump onto an investor class action lawsuit? We have already seen this with the recent OCC case against MYSB in New York, or with the SEC and AirFox in Boston.
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