Initial Coin Offerings: New SEC Guidance on Registration of Blockchain Tokens as Securities

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, October 3, 2017

Recorded event now available

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Program Materials

This CLE webinar will analyze recent SEC guidance regarding initial token offerings (ICOs) conducted on blockchain platforms. The panel will discuss the criteria that the SEC considers in determining whether digital tokens are securities for purposes of the Securities Act and the Exchange Act, and the implications for issuers when a token is considered to be a security.


On July 25, 2017, the SEC published an investigative report concluding that the initial coin offering conducted in 2016 by The Decentralized Autonomous Organization (“The DAO”) was an unregistered securities offering (the “DAO Report”). The SEC also published an investor bulletin on token offerings (the “Investor Bulletin”), that offers guidance to investors about tokens and participating in token offerings.

The DAO Report clarifies the SEC’s view that some tokens are securities for purposes of the federal securities laws. The Report said that these token offerings are not exempt from federal securities laws solely because a sale is conducted on an automated basis using a distributed ledger or “blockchain.” The DAO Report further confirms that participants in the unregistered sale of a token that is determined to be a security may face liabilities and remedies under federal securities laws.

The SEC considers the facts and circumstances articulated in SEC v. W.J. Howey Co. and subsequent cases to determine whether tokens are “investment contracts.” Among other things, the SEC looks at whether purchasers were investing in a common enterprise and reasonably expected to earn profits through that enterprise and whether the issuer expects to profit from the efforts of others. Howey, read together with The DAO Report, offers important guidance on how best to structure token sales going forward.

Listen as our authoritative panel discusses the impact of the DAO Report and Investor Bulletin on ICOs. The panel will analyze the Howey factors as applied to tokens, and provide tips for structuring token sales that remain exempt from U.S. securities registration requirements.



  1. Blockchain and the advent of digital currency and tokens
  2. The DAO Report
  3. The Investor Bulletin
  4. The Howey factors applied to digital tokens
  5. Investment management and exchange implications
  6. Structuring token sales in light of the DAO Report, the Investor Bulletin, and Howey


The panel will review these and other key issues:

  • What are blockchain tokens and how are they used?
  • What is the significance of the SEC’s new guidance?
  • How should token sales be structured in light of the SEC’s guidance?


Baris, Jay
Jay G. Baris

Morrison & Foerster

Mr. Baris is the chair of the Firm's Investment Management Practice. He represents investment companies,...  |  Read More

Silva, Alfredo
Alfredo B. D. Silva

Morrison & Foerster

Mr. Silva represents public and private companies and investors in a broad range of corporate and securities law...  |  Read More

Klayman, Joshua Ashley
Joshua Ashley Klayman

Of Counsel, Finance + Projects & Co-Chair, Blockchain + Smart Contracts
Morrison & Foerster

Ms. Klayman is part of the Firm's Financial Transactions Group and is a founding member and the head of the...  |  Read More

Kahan, Daniel
Daniel R. Kahan

Morrison & Foerster

Mr. Kahan's corporate transactional practice focuses on venture capital and private equity investments,...  |  Read More

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