9 March 2018
Since issuing its "DAO Report" in July 2017, the US Securities and Exchange Commission (the "SEC") has aggressively asserted jurisdiction over the products sold through initial coin offerings ("ICOs"). This week, the SEC issued a "Public Statement" cautioning investors and online platform operators that many platforms may be operating unlawfully. And with increasing frequency, the SEC has brought enforcement actions in the digital asset space. These actions have focused principally on violations of the securities offering registration and disclosure requirements of the Securities Act of 1933 (the "1933 Act") in the context of primary market ICOs. The DAO Report and Public Statement underscore a second front in the SEC's push to regulate the digital asset markets – enforcement actions against intermediaries that distribute or provide trading platforms for products issued in ICOs, but fail to register as securities exchanges and/or broker-dealers under the Securities Exchange Act of 1934 (the "1934 Act"). For example, the SEC and US Department of Justice (the "DOJ") recently filed civil and criminal complaints against an exchange operator. ICO trading platforms and other digital asset market participants also received SEC subpoenas earlier this year requesting information about ICO structures, investors, and transactional activity. We expect the SEC's regulatory and enforcement focus in this area to continue unabated.