Recently, the Securities & Exchange Commission released updated guidance on ICOs, and of particular note, highlighted the following:

  • ICOs, or more specifically, tokens, can be called a variety of names, but merely calling a token a “utility” token or structuring it to provide some utility does not prevent the token from being a security.
  • These products are often sold on markets that span national borders and where significant trading may occur on systems and platforms outside the United States. Although the SEC actively enforces securities laws, risks can be amplified, including the risk that market regulators may not be able to effectively pursue bad actors or recover funds.
  • Many platforms for trading digital assets refer to themselves as "exchanges," which can give the impression to investors that they are regulated or meet the regulatory standards of a national securities exchange.
  • Market participants should use caution when promoting or touting the offer and sale of coins without first determining whether the securities laws apply to those actions. Similarly, those who operate systems and platforms that effect or facilitate transactions in these products should be aware that they may be operating unregistered exchanges or broker-dealers that are in violation of the Securities Exchange Act of 1934.
  • If a platform offers trading of digital assets that are securities and operates as an "exchange," as defined by the federal securities laws, then the platform must register with the SEC as a national securities exchange or be exempt from registration.