The Other “Security Problem” with ICOs

Independent Coin Offerings are called “ICOs” and not “token sales” precisely because they want to appear similar to investor-friendly initial public offerings of stock (IPO) — which raises a catch-22 compliance problem many startups and investors haven’t much thought about. Specifically, ICOs represent a gray area in U.S. Securities Exchange and Commission (SEC) regulations, and that could make investing in an ICO a compliance minefield for many investors.

The main question in any ICO is this: do the tokens in the sale qualify as a financial security?

If so, then the ICO must follow some very specific rules to govern the sale, many of them identical to a conventional stock IPO. If your tokens are securities, your ICO must be registered with the SEC, and must be overseen by a registered broker. This is no small undertaking, but it has the advantage of laying out some clear rules to handle the token sale.

Many times, however, the SEC simply refuses to comment on whether an ICO is actually selling a qualified security. This means that — at some undetermined point in the future — your tokens could be retroactively classified as any of several asset classes, which in turn means that any initial investors are taking a risk beyond just the normal possibility of coins declining in value.

Anyone can buy a publicly traded stock, but if the SEC doesn’t consider your token equivalent to a public stock, it limits who is allowed to buy your coins under U.S. law. In theory, investors could be forced to divest themselves of their coins should the SEC later decide that your ICO sold an asset class that your investors weren’t qualified to buy — even if that divestiture causes a serious financial loss. Your investors could be forced to sell their tokens when their price is at rock bottom, all based on some unforeseen SEC decision.

This limitation applies even to sophisticated investors. For example, while hedge funds and accredited individual investors can buy pretty much anything, many mutual funds or retirement funds can only hold public stocks or bonds, and many venture capital funds can only hold stock in companies that have not yet issued an IPO. (Once a stock goes public, a VC fund usually has a window to divest, but can’t hold the publicly-traded stock for very long.)

Complicating matters further, unless your ICO qualifies as a crowdfunding instrument, it may be impossible for non-accredited investors — which is to say, average people who don’t have high net worth — to buy tokens during your sale. No one has stopped non-accredited investors from buying Bitcoin, but there’s no legal standard to prevent the SEC from treating your ICO differently.

Both the SEC and FINRA have issued investor guidelines for participating in ICOs. This is the playbook that smart coin-buyers will be following, and the standard your firm must be ready to meet.

Before issuing an ICO, it’s critical that your organization review the legal structure underpinning your token sale, both to prevent it from running afoul of regulatory guidance, and to protect yourself from investor backlash should the SEC decide to reclassify your tokens as a highly regulated asset class at some point in the future.

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Practical Assurance helps companies prepare for compliance with SOC 1, SOC 2, HIPAA, ISO 27001, IISF, and provides ICO and smart contract audits.

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