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前SEC律师:监管部门或推出ICO执法“流水线”

SEC前律师Nicolas Morgan日前表示,SEC很可能会在未来几年内针对ICO这一新兴行业推出执法行动的“流水线”。

近期,SEC发布ICO行业监管指导的同时还给出了将The DAO代币定义为证券的解释,但该机构尚未公布正式的监管规则。

不过市场已经对这样的监管环境做出了回应,比如Overstock的子公司tZERO决定接受监管,而其他公司则选择转移到其他国家并发行代币,从而建立其软件产品所需的资源。

但根据Morgan表示,ICO企业家们可能仍会遭遇到麻烦。比如你的ICO可能并不是证券,而有些法官可能会同意你的意见,但耗费精力从法官那得到答案是否是值得的呢?

Morgan曾在SEC执法部门任职7年,在最近召开的纽约ICO峰会上Morgan为我们解释了未来几年SEC的几个可能的监管重点。(以下内容摘自采访实录,发布前已经过编辑删减)

CoinDesk:SEC以及其他监管机构会在什么时间正式监管ICO?

Morgan: 直到 SEC 的调查程序结束前,你不会得到一个满意的答案(关于你的代币是不是证券),或者你可以发起诉讼, 看法官是否同意你的ICO不是证券。

但也不一定要进行一次审判,审判是在法律诉讼过程的最后阶段发生的。例如,在 Zaslavskiy这个例子当中, SEC必须要跑到法院,他们提出了申诉,并有效地表示“这种代币是证券。”然后,他们从法官那得到了初步裁决,表明这种代币可能是一种证券。

或者我们拿Tezos 这个例子来看:有人在旧金山州法院提出的私人诉讼。提出者并不是SEC。

原告及其律师称,Tezos 的ICO牵涉了证券。我有一种感觉,被告的第一道防线是:“这不是一种证券,这些特殊的法律并不适用。” 目前,并没有法官对此作出过裁决。

在这方面,我们还没有司法裁决,可能也会有几个月的空白期。

提问:如果一个创业公司想以证券的形式来发行其代币,它需要做什么呢?

Morgan:如果你想要那么做,第一件事就是决定你是否以注册登记的基础发行代币,或者得到相关豁免。这可能是创业公司需要面对的第一个问题。

然而第二个问题是:你在销售代币(ICO)过程中进行的描述?所得款项用途,对于潜在的投资者而言可能是最关键的描述,它将受到监管机构或私人原告的审查。

所得款项用途必须是准确的。这是第一步。第二步:如果你要兜售你的顾问委员会成员的资格时,确保自己真的是顾问,并已被同意列入名单。当你描述你的顾问或管理身份时,确保自己的描述是准确的,而不是夸大的。

这些事情将被仔细审查。

第三件事是,你如何描述自己要做的东西。这不是关于如何花钱,而是关于“我们有确定的里程碑。我们将在一月份之前推出这个平台。” 好吧,如果你是这么说的,如果一月份到了的时候,平台没有如期推出,那么这可能就会引发出问题。

提问:在你提到的“装配线”中,SEC是如何评估代币,又是如何进行调查的?

Morgan: 模型可能是一个很好的类比…这是在PIPES市场的一个特殊模型。

PIPES是私募股权投资的缩写,这也是对冲基金和其他投资者通过公开募股向小型上市公司投资的一种方式。

美国证券交易委员会(SEC)锁定了一种特定的模式,其中,冲基金有时会做空某家公司的股票,同时又购买其私募股权。

执法人员关注到了这种行为。他们并不喜欢这种做法,他们认为这是违法的,并且已对这类行为发出过数十张传票。

SEC 已制定出了一个模型,他们会根据这种模型发出传票,然后很快起诉公司。因此,我认为,在ICO这个领域,我们也会看到类似情况的发生。

我们看到过一个ICO案例,很显然它是属于证券的范畴,他们推出过一份白皮书,但并没有提供注册声明,显然他们也不符合豁免要求。所以,SEC可以发出传票。

这对于SEC而言简直易如反掌,所以我把它描述为一条装配线。这不会是自动的,但在他们看来,是很容易复制的。

提问:你认为SEC会很快给出更正式的监管指导吗?

Morgan: SEC交流的另一种方式是通过演讲、公开评论。我们也会看到无异议函。所以你可以去问一个非常具体的问题:“如果我们这样做,你会同意不建议采取行动去针对我们吗?”

而SEC最有效的方式就是提起诉讼。并且,我们会看到更多这样的案例。

在 ICO行业,也有人希望SEC能够颁布一些法规。我认为这也很可能发生。然而,规则制定是一个缓慢的过程。

提问:如果规则出台的话,SEC是否会在规则正式生效之前,豁免已经在运行的项目?

Morgan:不,我不认为他们会这样做。

提问:项目名称所使用的字眼是否会有影响?例如有些公司使用的“代币”,有的则是用“币”。

Morgan:经济现实比标签更重要。Tezos可能会是测试案例,因为他们试图把自己的代币称为“捐赠”。但这关乎的是经济现实,而不是标签,这是最关键的问题。

提问:在你看来,SEC在调查和监管这个行业方面,做的怎么样?关于监管的方式,你是否会担心?

Morgan: 关于The DAO,目前 SEC已经非常明确它就是证券。我认为 SEC在这方面做得非常好,但我认为这还不够。

他们应该发表关于代币标签的声明。他们会这样做的,它将以无异议函和规则制定的形式出现。

但我个人并不同意SEC的做法。

我所谈到的不同意,是我认为该执法部门会带来一些他们认为证券的案例,但辩方可能有一个合理的论点,即认为它并不是证券。

我担心,会出现SEC强行认定某些ICO项目属于证券的情况,因为在这些情况下,会有其他的不良因素,如欺诈、金钱盗窃等。

所以我们不会得到我们应该有的法律发展,也不会有关于是否是证券的细致入微的思考,因为会有其他的事实会掩盖这一问题。

The Securities and Exchange Commission could be gearing up to drop major actions on issuers of initial coin offerings (ICOs).

According to Nicolas Morgan, a former lawyer for the U.S. government agency tasked with regulating the securities industry, the SEC is likely to roll out a sort of "assembly line" of enforcement actions against the nascent industry in the coming years.

While the SEC has issued guidance to the ICO industry, recently laying out why it classified tokens issued by The DAO (a now-defunct ethereum smart contract that sold its token to investors) as securities, the agency has yet to announce formal rules.

In response, the industry has moved in a different direction. Some, such as Overstock subsidiary tZERO, are deciding to get regulated, while others have moved to create utility for their tokens, thereby establishing it as a resource necessary for software products.

But according to Morgan, and others in the industry, the ever-expanding language and group of terms and techniques the industry uses could still expose entrepreneurs to a time-consuming SEC investigation and litigation.

"You might be right that your ICO is not a security, and some judge, at the end of the day, may agree with you, but is it worth the expense and distraction to get that answer from a judge?" he told CoinDesk, adding:

"It's probably a better course of action if you're anywhere close to being a security, to just assume that it is and go forward with that presumption in mind."

Recently speaking at the ICO Forward Summit in New York City, Morgan, who served about seven years in the SEC's enforcement division, spoke to CoinDesk about what to watch for in terms of SEC enforcement in the coming years.

This interview has been edited and condensed.

CoinDesk: At what point will the SEC and others weigh in more formally on ICOs?

Morgan: You're not going to get a satisfactory answer that [your token is] not a security until the end of the SEC investigation process, in litigation, when you might get a judge that agrees with you that your ICO is not a security.

But it doesn't even necessarily have to be at trial; a trial happens at the end of a legal proceeding. For example, in the Zaslavskiy case – the diamonds and real estate ICO in Brooklyn, New York – the SEC had to go into court, they filed a complaint, they [effectively] said "this token is a security."

Then they got a preliminary ruling from the judge in that case that indicated that it probably was a security. That's as close as we've gotten to a ruling by a judge.

Or take the Tezos class action, as another example: private lawsuit, filed in San Francisco state court. Not the SEC.

The plaintiffs and their lawyers have alleged that [Tezo's ICO] involves a security. I have a feeling the very first line of defense by the defendants will be, "This is not a security. These particular laws don't apply." But no judge has ruled on it.

We don't have judicial rulings on this, and we won't have them for probably several months.

What does a startup need to do if it wants to proceed as if its token is a security, then?

Morgan: If you're proceeding on the assumption that you have a security and you want to have an ICO, the first thing is to decide whether you're going to offer the tokens on a registered basis or pursuant to an exemption to registration. That's probably the first issue that needs to be confronted.

Then there is: How will your sales and efforts selling ICOs or tokens be judged in hindsight? Use of proceeds is probably the biggest single representation to potential investors that will be scrutinized by regulators or private plaintiffs after the fact.

The use of proceeds has to be accurate. So that's step one.

Step two: If you're going to tout the qualifications of your board of advisors, make sure they actually are advisors and have agreed to be listed as such. And make sure when you're describing either your advisors or your management, that the descriptions are accurate, not exaggerated.

Those things will be scrutinized.

A third thing is how you're describing what it is you're going to do. Not in terms of how the money is going to be spent, but, "We have certain milestones. We are going to launch this platform by January." Well, if you say that, and January comes and goes and no launch has happened, that may be an issue.

Be careful how you characterize what you do operationally.

CoinDesk: In your "assembly line" reference – where the SEC assesses tokens and takes some into investigation on a rolling basis – how this would work?

Morgan: Models that might be a good analogy ... one was a particular model in the PIPES market.

PIPES is an acronym for private investment in public equities, and it was a way for hedge funds and other investors to invest generally in small publicly traded companies through a private offering. It's still around.

But the SEC latched on to a particular model, where the hedge funds would sometimes short the company's stock simultaneously with purchasing in the PIPE.

The enforcement folks saw this going on. They didn't like it; they thought it was a violation of law. And they sent these subpoenas out by the dozens.

The SEC developed a model where they saw the same fact pattern over and over again, where they would send out the subpoenas, check to see that fact pattern existed and then very quickly brought a lawsuit against companies. And so I can see that happening here.

We see an ICO, it pretty obviously falls into the realm of a security, in that they put out a white paper, they didn't have a registration statement, they didn't fit into an exemption to the registration requirements. So, let's send out a subpoena.

And if the fact patterns recur over and over again, it makes it pretty easy for the SEC, that's why I described it as an assembly line. Something that's not automated, but it's easily replicated on their side.

CoinDesk: Do you think the SEC will come out with more formal guidance soon?

Morgan: So, you see it a couple of different ways. You see it in something like the DAO report. That's called a 21(a) report, because the report is issued under a certain section of the law.

The other way the SEC communicates is through speeches, public comments. We're also going to see No Action letters, so you can go and basically ask a very specific question: "If we do this, will you agree not to recommend an action be brought against us?"

And then the absolute least effective way the SEC speaks is by bringing lawsuits. We're going to see more of those.

You can tell what the SEC's thinking because they allege it in a complaint they file in federal court or bring in an administrative proceeding. That's a tough way to regulate, by litigation, but that's going to happen too.

There are those in the ICO space who would prefer the SEC promulgate some regulations. I think that's likely to happen also. They've got a lot on their plate that has nothing to do with ICOs, and the rulemaking process is a slow process.

So that's why we may see the so-called regulation by litigation happen more immediately.

CoinDesk: If rules came along, would the SEC grandfather in projects operating before those rules were formalized?

Morgan: No. I don't think they would.

CoinDesk: Will all the fumbling with language, such as companies using "token" versus "coin" in their marketing, be effective?

Morgan: The economic reality matters far more than the label. Tezos may be the test case on that, because they tried to call it a "donation."

But it's the economic reality, not the label, that's the most critical issue.

CoinDesk: How is the SEC doing, in your mind, investigating and regulating the industry? Does anything about the way regulation will be laid down worry you?

Morgan: The DAO was a pretty obvious call as far as whether it was a security or not. I think that was good that the SEC did that, but it doesn't go far enough.

They should put out pronouncements about tokens that are a closer call. And they will. They'll get there. It will be in the form of No Action letters and rule-making.

I don't disagree with the SEC's approach.

What I'm anticipating disagreeing with is that I think the enforcement division is going to bring some cases where they just assume it's a security, but where the defense may have a legitimate argument that it's not a security.

I fear that the SEC will, in an effort to really make a point, bring cases where the existence of a security does not get the consideration that it really deserves, because there will be other bad factors in these cases. Fraud, theft of money, whatever it is.

So we won't get the development of the law that we should. There won't be the nuanced thinking about whether a security exists, because there will be other facts that overshadow that issue.


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