The Sec Rides Into Town: Defining an Ico Securities Safe Harbor in the Cryptocurrency "wild West"

• Publication year: 2018

The SEC Rides into Town: Defining an ICO Securities Safe Harbor in the Cryptocurrency "Wild West"

C. Daniel Lockaby
University of Georgia School of Law, daniel.lockaby@uga.edu

The SEC Rides into Town: Defining an ICO Securities Safe Harbor in the Cryptocurrency "Wild West"

Cover Page Footnote
J.D. Candidate, University of Georgia School of Law, 2019.

THE SEC RIDES INTO TOWN: DEFINING AN ICO SECURITIES SAFE HARBOR IN THE CRYPTOCURRENCY "WILD WEST"

C. Daniel Lockaby^*

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This Note recommends a viable way for the Securities and Exchange Commission (SEC) to apply the Regulation S foreign-issuer safe harbor to Initial Coin Offerings (ICOs). In the last two years, cryptocurrencies and blockchain-based companies have witnessed dramatic rises in price and value. New entrants to the crypto-markets often use ICOs as virtual public offerings to earn capital and develop their projects.
The SEC has signaled that they plan to fold ICOs and blockchain offerings into existing securities law. How these new virtual capital-raising mechanisms will fit into this framework is still largely unknown. As a defensive measure, many ICOs have banned US investors in an attempt to become foreign offerings that are outside the SEC's reach. Regulation S is the existing safe harbor that conventional securities offerings utilize to ensure that they are "foreign offerings." While ICOs are novel and do not fit perfectly into Regulation S's language, the safe harbor can be adapted to appropriately set parameters for ICOs. This Note suggests the correct interpretation that both protects US consumers and sets acceptable requirements for corporations seeking to fall within Regulation S.

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Table of Contents

I. Introduction..........................................................................337

II. The Brave New Crypto World...........................................339

A. WHAT IS BLOCKCHAIN?...................................................339
B. HOW ICOS WORK.............................................................342
C. THE PRE-2017 "WILD WEST"............................................343

III. SEC Involvement.........................................................................346

A. THE DAO REPORT............................................................346
B. BANNING U.S. INVESTORS...............................................348

IV. ICOs and Regulation S Compatibility..................................349

A. THE JURISDICTION QUESTION.........................................349
B. THE REGULATION S FRAMEWORK....................................351

1. Offshore Transaction.............................................351
2. Directed Selling Efforts.........................................355
3. Flowback and Additional Conditions...................358

i. Flowback Categories ............................. 359
ii. Substantial U.S. Market Interest ......... 359

C. CATEGORY 3 ADDITIONAL CONDITIONS SHOULD APPLY TO ICOS..............................................................................360

1. Alternative Classifications are Insufficient ........... 361
2. Text, Policy, and Intent All Support Category 3 Conditions .............................................................. 362

V. Conclusion............................................................................365

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I. Introduction

On October 4, 2017, the Securities and Exchange Commission (SEC) Chairman Jay Clayton sat in front of the House Financial Services Committee to clarify the SEC's agenda, operations, and budget. Two hours into the hearing, Colorado Congressman Ed Perlmutter expressed concerns of fraud in Initial Coin Offerings (ICOs).¹ He said that the new electronic offerings "remind[ed him] of the old days with penny stocks."² Chairman Clayton then agreed with Perlmutter's characterization and added: "I'm cautiously optimistic about the enforcement division's approach to [Initial Coin Offerings]. They know that this is a ripe area for pump-and-dump. Pump-and-dump—it's actually even easier here than it is in the penny stock area because it's all electronic, it's all anonymous, it's harder to catch the bad guys at the end of the day."³

Initial Coin Offerings are a new cryptocurrency-based fundraising method, which tech companies use to generate capital.⁴ While ICOs vary in form, they are essentially initial public offerings that raise capital from contributions on a blockchain (an electronic distributed ledger), and the projects are almost universally geared toward blockchain development.⁵

After their appearance in 2014, ICOs largely operated without regulatory oversight. While startups raised money without regulatory restrictions, suspicions developed that ICOs provided a haven for empty investment schemes.⁶ Taking its first step into the fray, the SEC published a report on a project called the Decentralized Autonomous Organization (DAO) in July 2017.⁷ The report ruled that the DAO's ICO was an unregistered sale of

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securities under the Securities Act of 1933, marking the first time that the SEC labeled an ICO as a securities offering.⁸

The SEC requires companies offering securities to register their offerings with the agency, a process that requires disclosure of corporate financial condition and other relevant metrics.⁹ Following the SEC's ruling on the DAO, it was uncertain whether several startup ICOs would similarly be subject to SEC Section 5 filing requirements (companies issuing securities must either file certifications and information with the SEC or fall within an exemption) and face SEC enforcement. In response to this uncertainty, tech businesses constricted their ICO breadth to prohibit contributions from U.S. investors.¹⁰ By eliminating U.S. contributions, the ICOs may avoid the SEC's jurisdiction and forego the filing requirements of the securities Act.¹¹

securities offerings exclusively outside the U.S. have traditionally sought exception to SEC registration requirements under Regulation S of the Securities Act.¹² ICOs too might seek this safe harbor. However, the SEC's expansion into ICO regulation is so young that entrepreneurs and regulators alike are uncertain of how blockchain projects will fit into the existing regulatory infrastructure.

This Note argues that the Regulation S "safe harbor" can apply to foreign ICOs without straining the Securities Act's statutory language.¹³ It also discusses the obligations that foreign ICO projects must meet to mitigate SEC enforcement risk.¹⁴ Along with those issues, this Note will outline practices that the SEC will likely find insufficient for Regulation S compliance and discuss best practices for ICO offerors conducting their ICOs outside the SEC's reach.¹⁵ ICOs do not fit perfectly into Regulation S's structure. ICOs allow for anonymous investing, and they permit easy transfer across

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national borders. Still, the exemption can be adjusted to adequately address crypto-markets without requiring an entirely new exemption.

That said, this Note is confined to analyzing foreign ICO projects seeking the Regulation S exemption under the Securities Act of 1933. It will not address obligations or liabilities for ICOs offerings to U.S. investors. Nor will it discuss obligations or liabilities under the Securities Exchange Act of 1934 or individual state requirements under Blue Sky laws. In that vein, this Note will also avoid discussing liabilities for ICO fraud, though it will address SEC actions involving fraud to demonstrate the agency's current stance. Finally, while this Note will consider crypto-token exchanges to examine security flowback, it will not examine an exchange's obligations to comply with either the 1933 or the 1934 Acts.

In Part II, this Note provides background on blockchain technology, cryptocurrencies, and ICOs. Part III addresses the SEC's ruling on the DAO and how ICOs responded by banning U.S. investors. Part IV outlines a workable methodology for applying Regulation S to Initial Coin Offerings and suggests best practices for ICOs seeking filing exemptions as foreign offerors.

II. The Brave New Crypto World

A. WHAT IS BLOCKCHAIN?

Blockchain is the foundational technology upon which cryptocurrencies like Bitcoin and Ethereum were created.¹⁶ Also known as "Distributed Ledger Technology," blockchain is an electronic version of a conventional ledger (think check books or library records).¹⁷ Aside from being digital, the primary features that make blockchain different and more desirable than a well-organized filing cabinet are decentralization, immutability, and (often) anonymity.¹⁸

Decentralization: Instead of relying on a centralized server to store information, blockchain technology distributes an identical

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ledger to all connected computers (or nodes), creating a decentralized storage system.¹⁹ Unlike conventional banks, there is no central bookkeeper. All of the code in a public blockchain is distributed amongst all users and blockchain maintenance (recording and validating new transactions) is performed globally using a process called mining.²⁰ While a blockchain's original creators may fashion the code to maintain some control over the system's functions, new nodes in a public blockchain have the same copy of the electronic ledger as the creators, and everyone is bound by the code's rules.²¹

Immutability: Put simply, it is very difficult to mess with a blockchain's recorded data. Blockchains can only be altered with permission from multiple connected nodes.²² Immutability and consensus help ensure that a single bad actor cannot alter the ledger's content. When a new transaction is verified by a set number of nodes, it is encrypted and added to a block of other transactions. The block is then attached to the chain of unalterable public transactions²³ —hence the name "blockchain." Some have suggested that the immutability of the decentralized ledger makes blockchain transactions "trustless" because bad actors can be...