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Digital Asset Transactions: When Howey Met Gary (Plastic)

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Jun 14, 2018

On June 14, 2018, the Securities and Exchange Commission (SEC) posted a speech by William Hinman, Director of the Division of Corporation Finance, on whether a digital asset offered as a security can, over time, become something other than a security.

In his speech, Mr. Hinman states that:

To start, we should frame the question differently and focus not on the digital asset itself, but on the circumstances surrounding the digital asset and the manner in which it is sold. To that end, a better line of inquiry is: “Can a digital asset that was originally offered in a securities offering ever be later sold in a manner that does not constitute an offering of a security?” In cases where the digital asset represents a set of rights that gives the holder a financial interest in an enterprise, the answer is likely “no.” In these cases, calling the transaction an initial coin offering, or “ICO,” or a sale of a “token,” will not take it out of the purview of the U.S. securities laws.

But what about cases where there is no longer any central enterprise being invested in or where the digital asset is sold only to be used to purchase a good or service available through the network on which it was created? I believe in these cases the answer is a qualified “yes.” I would like to share my thinking with you today about the circumstances under which that could occur.

Review the full speech on the SEC's website.

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