Tag Archives: initial coin offerings

Securities Regulations 3.0 Digital Token Offerings, ICO vs. STO

Digital Token Offerings & Securities Regulation: Are you an ICO or STO? (the following is courtesy of Prospectus.com LLC) 

A question that is harder to ask than whether asked if your product is butter or margarine. Blockchain token sales (aka initial coin offerings or “ICOs”) reportedly topped $5 billion in 2017, with approximately $1 billion ICO offerings originating in the United States, according to a December 2017 report by Ernst & Young. Blockchain technology has a variety of prospective applications, and blockchain tokens can have a variety of features and functionality. For example, some blockchain tokens may function as a virtual currency, or as a license or right to receive a good or service or to use certain software. Even traditional assets like real estate or stock in a company may be “tokenized.” That said, a token’s characteristics and the manner in which the token is sold drives the determination as to whether US securities laws –as well as a growing universe of securities regulations in other jurisdictions-may be applicable, explaining the more recent industry labeling:“securities token offering” , also known as STO.

Evan Fisher prospectus.com
Evan Fisher, Prospectus.com LLC

While much has been said and much has been written on the topic of securities regulations within the context of digital token offerings, it would seem that many are still clueless (or perhaps have bananas in their ears and blinders on their heads). Evan Fisher, a finance industry veteran  and business plan consultant at Prospectus.com LLC stated, “Of the several dozens of initial conference calls between the staff at Prospectus.com LLC and crypto cool kids seeking white paper writing and/or investor offering document preparation for respective ICOs,  the take away is that many crypto entrepreneurs still suffer from blind eye syndrome and are advancing capital raises in direct violation of established law. ” Adds Peter Berkman, a US securities and real estate attorney who also advises clients of Prospectus.com LLC, “Regrettably, ignorance of the law is not a viable defense strategy for those charged with violating securities laws and/or anti-money laundering laws.” Added Berkman, “the popular argument held by many start-up entrepreneurs in ‘crypto land’ is that their token is not actually a security-which is fine-as long as they’ve set aside several hundred thousand dollars to defend that argument when they wind up wearing court order to appear.”

That said, there should be two rules of thought for those who aspire to advance digital token offerings and who believe they have a great, industry disrupting idea that leverages their fintech fluency and the blockchain ecosystem. First, consider the 3 Duck Rule-If it looks like a duck, walks like a duck and quacks like a duck, regulators will call it a duck and second, advancing the notion that your ‘token’ is a utility device and the pitch to investors is “the value of the token will increase as usage of the token increases”–hence the reason for investing in it-is a thesis that has been advanced by each of the 800+ digital token offerings that have died on the vine before reaching puberty.  Leading many investors to ask in retrospect, “What the f*&k happened to the money I invested?!”  In turn, leading this author to answer: “Your money has been carefully distributed to a variety of real world assets, including luxury homes, vacation homes, cars, NetJet contracts and other toys purchased by the folks who you sent your money to.” If you’re a crypto cool kid and your value proposition is “If we build it, they will come and they will play” and hence,  “its the balls and bats that we provide that will have value and the more folks play, the greater the value of the bat and balls,” we congratulate you for socialistic leanings.

If you’ve got a hot insider tip, a bright idea, or if you’d like to get visibility for your brand through MarketsMuse via subliminal content marketing, advertorial, blatant shout-out, spotlight article, news release etc., please reach out to our Senior Editor via cmo@marketsmuse.com.

On the other hand, sophisticated investors are rapidly losing interest in pitches for digital token offerings that are based on the same premise advanced by dot-com busters–the one that suggested “if we get enough users, we’ll be profitable!” Yes, that proved true for whose business models were based on advertising sales and were able to attract enough eyeballs to appeal to advertisers. And yes, this model has worked beautifully for Alphabet Inc, FaceBook, YouTube and a select universe of others. Yes, you can also go to the dot-com graveyard and locate the thousands of others who never got enough users, or never got advertisers to pay those sites to install a click-able link. In the Software as a Service (SaaS) model, people pay for using a software application on a subscription basis. In the utility token construct, payment to use the software application and those who receive payments is often complex; but investors in the token are generally not sharing in that revenue. They can only look to a return on their investment if a whole bunch of people are using it and if a whole bunch of people are using it, they will need to procure more tokens for continued usage. If  there are a limited number of tokens available for using the application, the value of the token will therefore increase.  Not to suggest the ‘pay-to-play’ model is bad (its arguably a good business model), the rubber meets the road at the point where users don’t want or don’t need to play with your token–because nobody else cares to play with it.

To read the entire article from Prospectus.com LLC, please click here

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SEC Aims to Rein In and Reign Over Initial Coin Offerings – Duck Test 3.0

Initial Coin Offerings [Finally] Get SEC Attention; The Duck Test 3.0.

For those who believe the US SEC is slow to react when reining in and/or reigning over new-fangled investment products, the evidence indicates you are accurate. After all, recent history regarding sub-prime debt sold to unwary investors, Madoff-style investment management scams, payment-for-order schemes advanced by exchanges, and high-octane exchange-traded notes unsuitable for retail investors are just a few of the topics that made it out of the gate and far into the fields before investor advocates rang the alarm bells at the front door of the US Securities & Exchange Commission.

There have been more than 160 of these ICOs this year, which have collectively raised more than $3 billion, according to data from research firm Coindesk. Before this year, ICOs had raised a total of about $300 million going back to 2014.

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SEC Chair Jay Clayton Photo: Andrew Harrer/Bloomberg News

In defense of the bureaucrats based in Washington, their job description is arguably less a function of evaluating investor-suitable products and Wall Street selling practices as opposed to their primary role of chasing the horse after its out of the barn. After all, the folks who offer SEC staff with new investment product insight and regulatory recommendations (and tickets to concerts and sports events) are highly-paid lobbyists who represent Wall Street investment banks that have an agenda–to make fees from selling investment products and to ensure there is as little as possible regulatory oversight on their activities. Thanks for reinforcing that view, Mr. Trump!

But, in the case of the latest innovative product known as initial coin offerings, where innovators are raising money for an assortment of business models through issuance of bitcoins vs traditional shares in a company, Wall Street banks are finding themselves short of having a controlling role in the underwriting, sale and secondary market trading of these ‘instruments.’ Whilst the likes of Goldman Sachs and other fintech-friendly firms are racing to find their sweet spots in the digital ledger, blockchain and bitcoin space, suffice to say those investment banks are not happy about losing out on what would have been tens of millions of dollars in underwriting fees that could have been generated from the more than 160 private placement offerings that raised nearly $3billion since the beginning of the year, as well as potentially hundreds of millions of dollars in potential underwriting fees based on the pipeline of ICO deals in the pipeline.

So, it should come as no surprise that despite the ongoing string of announcements about new ICO issuance, the SEC has seemed to be asleep at the wheel for months insofar as issuing any regulatory edicts, leading some cynics to suggest that lobbyists from Wall Street have more recently whispered into the ears of SEC Chair Jay Clayton and compelled him to assert the power of SEC over those conducting initial coin offerings.

MarketsMuse readers are directed to coverage by Prospectus.com, “SEC Invokes Duck Test for Initial Coin Offerings-ICO Alert” via this link

If you’ve got a hot insider tip, a bright idea, or if you’d like to get visibility for your brand through MarketsMuse via subliminal content marketing, advertorial, blatant shout-out, spotlight article, news release etc., please reach out to our Senior Editor via cmo@marketsmuse.com.