The U.S. Securities and Exchange Commission’s Office of Compliance Inspections and Examinations (OCIE) recently noted that ineffective practices, policies, and procedures governing the use of third party cloud-based storage platforms could result in compliance issues under Regulations S-P (Safeguards Rule) and S-ID (Identity Theft Red Flag Rule). As a result, OCIE has issued a Risk Alert advising broker-dealers and investment advisors to implement and oversee security programs ensuring the protection of customer records and personally…

On May 9, 2019, SEC Commissioner Hester Peirce delivered a speech at the Securities Enforcement Forum in East Palo Alto, California, discussing the SEC’s impact on the FinTech space and growth of the digital asset industry. Commissioner Peirce admitted her prior prediction, that the SEC would discourage the industry’s growth through hurried regulation and overenthusiastic enforcement action, was very wrong. While the SEC has stifled its growth, she remarked, this is not due to hasty…

On April 3, 2019, the Securities and Exchange Commission (“SEC”) issued its first no-action letter related to the offering and sale of digital tokens. The beneficiary is TurnKey Jet, Inc. (“TurnKey”) which proposes to offer and sell blockchain-based digital assets in the form of “tokenized” jet cards (“Tokens”). The no-action letter, which some see as a turning point in the digital asset regulatory space, is unlikely to provide much encouragement to other issuers desiring…

On February 8, 2019, SEC Commissioner Hester Peirce delivered a speech at the symposium ”Protecting the Public While Fostering Innovation and Entrepreneurship: First Principles for Optimal Regulation.” Her remarks, entitled “Regulation: A View from Inside the Machine,” provide insight into how SEC regulators currently view certain technological innovations and how they interpret and apply the Howey test as to when something is an “investment contract,” and therefore a security, for purposes of the…

On January 4, 2019, two Colorado senators introduced the “Colorado Digital Token Act,” a bill seeking to exempt digital tokens and cryptocurrencies from certain Colorado state securities laws. In filing the Colorado Digital Token Act, the senators proposed that digital tokens with a “primarily consumptive purpose” that are not marketed to be used for “speculative or investment purposes” should be exempt from certain state securities laws. The overall purpose of the proposed Colorado…

On November 16, 2018, the Securities and Exchange Commission (“SEC”) issued a statement on the application of federal securities laws to the issuance and trading of, and investment in, digital asset securities. While the statement encourages technological innovations that benefit investors and capital markets, it emphasizes that market participants must still adhere to federal securities laws when dealing with new technologies (such as blockchain and other distributed ledger technologies) in connection with digital asset securities.…

On November 8, 2018, the Securities and Exchange Commission (“SEC”) announced that it settled charges against Zachary Coburn, founder of EtherDelta, a digital token trading platform, for operating an unregistered national securities exchange. This is the SEC’s first enforcement action based on findings that a digital token trading platform operated as an unregistered national securities exchange.…