Opinion: SEC's Proposed 'Crypto Asset Regulation' May Not Spark New ICO Boom
On August 26, the U.S. SEC announced proposed rules for 'Regulation Crypto Assets' on August 18, which set two exemptions for specific investment contracts involving crypto assets: first, allowing startups to raise up to $5 million in a single financing round over four years; second, permitting eligible issuers to raise up to $75 million within any 12-month period, with the possibility of conducting different rounds of issuance in subsequent years. Drew Hinkes, a partner at Winston & Strawn, stated that as long as each round of financing is genuinely independent, projects could theoretically raise $75 million every 12 months. However, Lilya Tessler, head of Sidley's fintech and blockchain practice, pointed out that subsequent financing is not automatically approved; issuers must resubmit offering documents, undergo SEC staff review, and continue to file annual and semi-annual reports, while disclosing funds raised through the exemption in the past 12 months to confirm they have not exceeded the limits. The proposed rules also limit the participation scale of non-accredited investors, capping their purchase amounts at 10% of the higher of their personal income or net worth. Duke University financial regulation expert Lee Reiners believes that the limited first-round cap may make early token allocations more attractive, but the rules are unlikely to recreate the ICO boom of 2017. The previous round of ICOs has impacted investor confidence, with up to 90% of projects that raised funds through ICOs from 2017 to 2019 ultimately failing. The SEC anticipates that about 130 issuances per year will utilize the aforementioned exemptions, with around 475 issuers potentially using a broader safe harbor for investment contracts. The new rules will provide token issuers with a clearer path for financing in the U.S. compared to the current system, but secondary market trading may still exist in a gray area regarding securities characteristics. The proposal stipulates that investment contracts related to crypto assets may continue to trade in the secondary market alongside token transfers until the asset is separated from the issuer's representations or commitments. Hinkes noted that if tokens without securities characteristics transfer investment contracts from seller to buyer, such transactions may still be considered securities transactions, impacting trading platforms. Reiners also warned that some issuers may meet the formal requirements for exemptions but still influence token value through team management efforts, concentrated insider holdings, and aggressive promotion.