Conducting a Rigorous Review of Virtual Tokens
What laws govern a token and what they require can be affected by a wide range of facts and circumstances. Our firm takes a holistic approach to token analysis, conducting a rigorous review of all aspects of a virtual token and planned token sale. As part of our review, we:
- Carefully analyze the attributes of our clients’ virtual tokens to determine what state and federal laws and regulations they may be subject to
- Review our clients’ white papers and other marketing materials to ensure compliance with state and federal securities and consumer-protection laws
- Advise clients on optimal virtual-token and token sale strategy in view of existing law and emerging legal developments
Providing a Comprehensive Overview of the Regulatory Landscape
As part of our standard token analysis, we consider whether the attributes of a token, its developer, or the way in which it is marketed and sold to the public bring it within the federal definition of a security. Moreover, we further analyze whether the virtual tokens can be considered an “equity security”, an “investment contract” or a “debt security” as different rules and regulations apply to different types of securities.
Normally, that occurs when the token meets the Howey test for an investment contract, which uses the following four elements:
An investment of money
In a common enterprise
In which the investor is led to expect profits
Predominantly from the efforts of others.
While SEC v. W.J. Howey Co. (Howey) is a landmark case used to determine whether a token is a security under the U.S. laws, there is additional precedent and SEC’s unofficial comments that help us guide clients in their token design and sale strategy. Moreover, we further analyze whether the virtual tokens can be considered an “equity security”, an “investment contract” or a “debt security” as different rules and regulations apply to different types of securities.
We Perform In-Depth Analysis of Your Token and Develop the Token Sale Strategy
When analyzing a new token, we review all applicable federal securities regulations in order to assess the probability of SEC treating the token as a security. We guide the clients and provide advice as to how to move forward with a token sale in compliance with SEC regulations.
Simultaneously, our analysis is sensitive to the varying definitions and regulations for securities at the state level. By carefully reviewing all applicable laws at every level of government, we can provide our clients with a detailed understanding of what laws apply to their tokens and how best to address them.
Developing Innovative Strategies for Compliance
The application of existing laws to the context of virtual tokens remains unclear in several important respects when it comes to secondary trading and trasnfers. Our firm designs innovative, robust strategies that help our clients succeed even in the face of legal uncertainties.
We do this by:
- Maintaining a thorough, up-to-date understanding of the state and federal laws implicated by virtual tokens and token sales
- Taking advantage of exemptions from registration under the federal laws
- Taking advantage of alternative token sale structures, including dual token sales
- Drafting or reviewing terms and conditions to ensure that they are clear and comprehensive, reducing the risk of disputes and the costs of resolving any disputes that do arise