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

A live 90-minute CLE webinar with interactive Q&A


Tuesday, October 3, 2017 (in 11 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This CLE webinar will analyze recent SEC guidance regarding digital token offerings 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.

Description

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.

Our panel will discuss the impact of the DAO Report and Investor Bulletin on token sales. 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.

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.

Outline

  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

Benefits

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?

Faculty

Jay G. Baris, Partner
Morrison & Foerster, New York

Mr. Baris is the chair of the Firm's Investment Management Practice. He represents investment companies, broker-dealers, investment advisers and other financial institutions in the full spectrum of financial services regulation. He helps clients develop new financial products that cross over banking, commodities, insurance and securities law. He is active speaker and writer on issues concerning investment management and the regulation of financial institutions and has been published in a variety of trade and general interest publications.

Alfredo B. D. Silva, Partner
Morrison & Foerster, San Francisco

Mr. Silva represents public and private companies and investors in a broad range of corporate and securities law matters. His practice includes initial public offerings, primary and secondary offerings, private placements, preferred stock financings and public and private mergers and acquisitions. In his public company practice, he also counsels issuers on corporate governance issues, compliance with the U.S. federal securities laws, and compliance with the listing standards of Nasdaq and the New York Stock Exchange. In his private company practice, he has served as company or investor counsel in venture and late-stage financings, minority strategic investments and impact investments in dozens of private companies.

Joshua Ashley Klayman, Of Counsel, Finance + Projects & Co-Chair, Blockchain + Smart Contracts
Morrison & Foerster, New York

Ms. Klayman is part of the Firm's Financial Transactions Group and is a founding member and the head of the Firm’s Blockchain + Smart Contracts Group. Her practice focuses on finance and corporate matters. In her finance practice, she regularly represents lenders and borrowers in leveraged finance transactions involving senior, mezzanine and subordinated debt and equity offerings and co-investments, as well as in general lending matters. In her corporate practice, she represents public and private organizations in a broad array of commercial transactions and corporate governance matters.

Daniel R. Kahan
Morrison & Foerster, McLean, Va.

Mr. Kahan's corporate transactional practice focuses on venture capital and private equity investments, mergers and acquisitions, divestitures and spin-offs, public securities offerings, and corporate governance matters. He also regularly advises clients in strategic technology transactions, including professional service agreements, software-as-a-service agreements, sourcing agreements, transition service agreements, distribution agreements, reseller agreements, and intellectual property licensing matters.


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Banking & Finance Law Advisory Board

Irving C. Apar

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Thompson Hine

Mark N. Berman

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Northeastern University

Willa Cohen Bruckner

Partner

Alston & Bird

Lawrence Kaplan

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Paul Hastings

Kevin Petrasic

Partner

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Laura D. Richman

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Robert M. Stern

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