SEC commissioner updates cryptocurrency safe harbor proposal

Fintech SEC Securities Agency Rule-Making & Guidance Safe Harbor Virtual Currency Cryptocurrency Digital Assets

On April 13, SEC Commissioner Hester M. Pierce released an updated version of her proposal for a three-year safe harbor rule applicable to companies developing digital assets and networks. As previously covered by InfoBytes, last year Pierce suggested that not only would the rule provide regulatory flexibility “that allows innovation to flourish,” but it would also protect investors by “requiring disclosures tailored to their needs” while still maintaining anti-fraud safeguards, allowing investors to participate in token networks of their choice. The three-year grace period for qualifying companies, Pierce suggested, would allow time for the development of decentralized or functional networks, adding that at the end of the three years, a successful network’s tokens would not be regulated as securities.

The updates to the proposal reflect feedback from the cryptocurrency community, securities lawyers, and the pubic, and include, among other things:

• A requirement for companies to provide semi-annual updates to the plan of development disclosure and a block explorer;
• An exit report requirement, which would include either (i) an outside counsel analysis explaining why the network is decentralized or functional; or (ii) an announcement that the company will register the tokens under the Securities Exchange Act; and
• Enhancements to the exit report requirement to address what the outside counsel’s analysis should address when explaining why a network is decentralized.

The public is encouraged to provide feedback on the updated proposal.