October 22, 2018

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Chairman Clayton Asks Lawyers to Knock it Off with the Unregistered Coin Offerings

In his recent remarks at the Securities Regulation Institute, SEC Chairman Jay Clayton had some stern words for market professionals, especially lawyers, involved in initial coin offerings (ICOs).  He expressed concern that lawyers in the space “can do better” in their role as gatekeepers to the securities markets, particularly in advising clients whether the “coin” being offered is a security requiring registration.

In particular, he noted situations where lawyers may have helped to structure an ICO with many of the hallmarks of a securities offering, but have taken the position that the coin is not a security.  Second, he noted situations where attorneys have apparently stepped back and provided “equivocal advice” rather than counseling clients that the ICO being promoted would likely require registration.  In his view, these approaches are inappropriate in light of SEC guidance indicating that ICOs are likely to qualify as securities under the long-standing Howey test for investment contracts.

Chairman Clayton noted that he had instructed the SEC staff “to be on high alert” for these situations.  These comments follow his unscripted remarks during a PLI speech in November that “I have yet to see an ICO that doesn’t have a sufficient number of hallmarks of a security.”  We understand that many of the roughly two dozen enforcement attorneys in the SEC’s new Cyber Unit are focused on ICO and blockchain-related investigations, with more cases in the pipeline.

With the SEC’s assertion of jurisdiction over ICOs as securities, and the CFTC’s recent release indicating that it would regulate and monitor cryptocurrency futures contracts, registration and compliance issues are paramount.  If a violation renders a security defective, transactions involving cryptocurrencies or ICOs may also be called into question as either void (automatically unwound) or voidable (unwound at the wronged party’s discretion).  Fund managers with investments in or exposure to ICOs and, more broadly speaking, cryptocurrencies should prepare for increasing regulatory scrutiny and enforcement spillover.

© 2018 Proskauer Rose LLP.

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About this Author

Joshua Newville, Proskauer Rose, regulatory enforcement attorney, industry compliance legal counsel, securities exchange commission lawyer
Partner

Joshua M. Newville is a partner in the Litigation Department in New York. His practice focuses on commercial litigation and regulatory investigations. Mr. Newville advises companies and individuals in securities litigation and compliance matters. He also focuses on internal investigations and enforcement matters. Prior to joining Proskauer, Josh was senior counsel in the U.S. Securities and Exchange Commission’s Division of Enforcement, where he investigated and prosecuted violations of the federal securities laws. Josh served in the Enforcement Division’s Asset...

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Jeffrey D Neuburger, Proskauer Rose Law Firm, Technology Attorney
Partner

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain.  

212-969-3075