Not every initial coin offering is a "security" under the Howey Test. This is the most significant SEC action treating a product as a "utility token" and not as a security. That said, while there are lessons that can be drawn from the letter, the letter does not establish anything resembling a clear "rules of the road" that can be readily replicated by another technology developer. See also .

The absence of any clear statement of law in this letter has given rise to what may turn out…

In proposing a safe harbor for digital tokens, Commissioner Peirce mentions two letters that the SEC staff had issued in which it took no-action positions as to whether a digital token was a "security." The first of these, , concerned a stablecoin that serves as a substitute for making payments through a credit card (see this ).

The second no-action letter, , is a genuine attempt by the SEC staff to grapple with the issue of the difference between a utility token that is…

This is a thoughtful piece that sketched out the likely direction for the CFTC in the coming year. A very worthwhile read for those wanting a view of current thinking at the agency.

This disciplinary action is notable because the relevant investors seemed to have been "accredited investors" who were eligible to participate in the private placement. The firm's violation was that it did not have a relationship with the relevant investors until it had begun participation in the relevant offering. According to fn. 4 of the enforcement action, participation in an offering can begin before the actual solicitation of investors; e.g., when a firm is conducting due diligence…