The number of initial coin offerings getting through the back door at the Securities and Exchange Commission skyrocketed last year, as the securities regulator sent mixed messages about the future of investment contracts based on digital assets.
MarketWatch counted 287 ICO-related fundraisings accepted by the SEC with a total stated value of $8.7 billion in 2018, peaking at 99 in the second quarter. That’s a significant increase from 44 fundraisings filed with a total stated value of $2.1 billion in 2017.
ICO promoters gained access to accredited investors through a back door called Form D, as first reported by MarketWatch in February of last year.
Form Ds are notices filed by a company for an offering that is exempt from full SEC registration requirements. The key criteria for the Form D exemption is that only “accredited investors,” that is, individuals that have a net worth of over $1 million, or that have consistently made over $200,000 per year in income, or companies that have over $5 million in assets, can invest. Companies don’t have to file the Form D before the offering takes place, but instead within 15 days after the first sale of securities in the offering.
MarketWatch searched the SEC’s Edgar database for mentions of words including “coin,” “ICO,” “token,” “initial coin offering” and “saft.” The SEC has been taking steps to warn investors and limit the number of scams from initial coin offerings. Chairman Jay Clayton repeatedly reassured markets in 2018 that no ICOs were “registered” by the SEC.
In May, the SEC’s Office of Investor Education and Advocacy’s tried to capture investors’ attention by setting up a mock ICO website using a bogus coin offering to educate investors about scam red flags. The SEC called it HoweyCoins.com, after the SEC v. Howey, the Supreme Court’s test for whether a transaction qualifies as an “investment contract” and is therefore regulated by the SEC.
In November, the SEC settled its first cases imposing civil penalties solely for ICO securities offering registration violations. The SEC had charged two companies that sold digital tokens in ICOs in 2017 — Airfox, a Boston-based startup that raised $15 million and Paragon, an online entity that raised approximately $12 million — without registering the tokens as securities or filing periodic reports with the SEC.
Later that month, the SEC brought their first cases over touting violations for initial coin offerings, charging boxer Floyd Mayweather Jr. and music producer DJ Khaled.
Based on MarketWatch’s analysis, the SEC’s actions may have helped to slightly staunch the demand for more offerings. But the public statements and speeches of SEC officials belied a reluctance to close the door completely on digital assets and the investment contracts based on crypto-concepts.
SEC commissioner Hester Peirce is a crypto booster, industry advocates say. They’ve nicknamed her “Crypto Mom” after remarks in dissent of a decision by the SEC to reject the application from Cameron and Tyler Winklevoss for a bitcoin-backed exchange-traded fund.
In a speech via video to the Crypto Valley Summit in Zug, Switzerland on Nov. 7 she acknowledged that U.S. regulators are “admittedly sending mixed messages” because they are “coming to terms with crypto in different ways” and not always coordinating with each other.
“For example, our sister regulator, the Commodity Futures Trading Commission, has allowed the development of crypto-derivatives markets, but the SEC so far has not approved any application to list an exchange-traded product based on cryptocurrencies or crypto-derivatives trade on U.S. exchanges,” she told the audience.
Peirce said, “regulators have an unfortunate habit of allowing their own conservatism and their legitimate fear that they will be blamed when investments go wrong to curtail investors’ options.” She favors a different approach, one that “allows investors—informed by good information about the relevant exchange-traded product and encouraged to exercise a healthy dose of skepticism—to choose whether or not to buy the product. I am working on convincing my colleagues.”
In April Coindesk.com reported that Clayton told a Princeton University audience he rejected the idea that all ICOs are fraudulent, even though in February, in he said that he believes “every ICO” he’s seen qualifies as a security. Clayton opened the talk by saying he believes that “distributed ledger technology has incredible promise for the financial industry.”
On Dec. 6, Clayton told an audience at Columbia University, “I believe that ICOs can be effective ways for entrepreneurs and others to raise capital,” Clayton said, while also warning that “the novel technological nature of an ICO does not change the fundamental point that, when a security is being offered, our securities laws must be followed.”
These ICOs could potentially become available to retail investors and consumers, who are supposed to be protected from scams by SEC, as a result of the growth of secondary markets for the crypto-tokens that were created by these ICOs.
Several cryptocurrency-related firms are pursuing alternative trading systems or ATS licenses with the objective of providing trading platforms for ICO tokens and other cryptocurrencies. The SEC regulates these trading platforms, which trade securities listed on national exchanges but are not registered as exchanges themselves.
Coinbase acquired three firms, one of which — Venovate Marketplace — is registered as an ATS. Overstock already had an ATS from a previous acquisition. One of its subsidiaries, tZero, is using it to build a security token exchange.
Spokespersons at the SEC and CFTC did not respond to requests for comment due to the government shutdown.