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The current SEC administration has expressed the view that
most crypto assets are offered and sold as securities and has
proposed several rules that address “digital asset
securities” or “crypto asset securities.” In this
article, the authors address how certain SEC rule proposals could
impact existing crypto market participants if the rules are adopted
as proposed and the SEC’s view that most crypto assets are
offered and sold as securities prevails.
Under Chair Gary Gensler, the Securities and Exchange Commission
(“SEC”) is engaging in an unprecedentedly active
rulemaking agenda1 that includes several rules that
address “crypto asset securities.” The inclusion of
crypto asset securities in the SEC’s rulemaking agenda is
notable because of the continuing disagreement between the SEC, the
crypto industry, and other financial regulators about whether most
crypto assets are offered and sold as securities.
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Originally published by The Review of Securities &
Commodities Regulation, 6 March 2024.
Footnote
1. According to the Agency Rule List from Spring 2023,
the SEC is on track to propose and finalize 63 new rules by the end
of the current Chair’s first four years in office. This
represents a dramatic increase in the pace of rulemaking from the
previous two Chairs, Chairs Mary Jo White and Jay Clayton, who
finalized 22 rules and 43 rules, respectively, that they had
proposed. As of September 20, 2023, of the 63 rules on Chair
Gensler’s docket, 16 have been proposed and finalized, 33 have
been proposed but not yet finalized, and 14 have not yet been
proposed. Kenneth E. Bentsen, Jr., The Unprecedented Speed and
Volume of SEC Rulemaking, SIFMA (Sept. 21, 2023), https://www.sifma.org/resources/news/the-unprecedented-speed-and-volume-of-sec-rulemaking/.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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