Market Readies for ICOs 2.0
During the Dotcom boom, someone coined the term “Internet time,” which was seven times as fast as regular time, to describe the pace of development. With the rise of digital currencies and tokens, the pace related to software development matches, or surpasses, Internet time.
“The rate of evolution in this space is five to ten times faster than traditional software,” said Alex Mashinsky, CEO of The Celsius Network and who spoke at Fintech World at the Blue Chip ICO’s Funding Roadshow in Midtown Manhattan.
Mashinsky also noted that digital tokens are in the midst of a Cambrian Explosion of new ideas which likely will not last for more than a decade since 90% of them are bad ideas.
“That is the nature of business: Most ideas do not succeed,” he said. “The crypto community is using a ’spray and play’ strategy and throwing money at BananaCoin and PonziCon. There is actually a coin called ‘PonziCoin.’”
Such rapid development and flame-outs have left market regulators struggling to keep up but they are ramping up their actions.
In a hearing before the US Senate Committee on Banking, Housing and Urban Affairs earlier this week, US Securities and Exchange Commission Chairman Jay Clayton and Commodity Futures Trading Commission Chairman Christopher Giancarlo testified that people have thought they found loopholes in securities law regarding initial coin offerings, but they had not.
CFTC Chairman Giancarlo went as far as to announce that the CFTC brought three ICO-related enforcement actions since the beginning of the year.
The concept of a token loophole really began in July 2017, ” according to Mark Roderick, crowdfunding attorney at the law practice of Flaster Greenberg and who participated on a Fintech World panel. “That was wrong, and that balloon began to puncture in August.”
However, it typically takes market regulators 20 to 24 months to investigate, according to fellow panelist David Silver, founder and partner at law firm of Silver-Miller.
“I think you will find the SEC coming out with a lot of what has happened in 2017 in mid- to late 2018,” he added. “Then we will learn what happened a year ago from a government perspective.”
Most of the panel agreed that much of the trouble surrounding ICOs had been the development of the Simple Agreement For Future Tokens, which is based on the Simple Agreement for Future Equity used for private placements.
“SAFTs are garbage,” said panelist Jason Nagi, an attorney at the law firm Polsinelli. “When you take a SAFE and mix it up with a token, which the SEC really does not like, you are creating something that some people call ’The Frankenstein product,’and the regulator knocking on your door will not be happy with it.”
Nagi recommended that anyone considering an ICO should consider treating it as a security that is subject to Regulation D’s Rule 506 and offer it only to accredited investors.
Fellow speaker Gary Ross, an attorney at the law practice of Ross & Shulga, also noted that this would lead to restrictions, especially in the secondary markets.
“There is no easy way around it,” he said. “There is Reg 141 and holding periods that apply. If you have a security token, you are kind of stuck.”
Investors would be better to buy stock rather than tokens, but SAFTs are acceptable if you treat them properly as a security with the need disclosure and transparency, agreed Roderick. ”
“If you are an issuer who want to raise money and the market wants to buy SAFTs, you sell SAFTs because the market is crazy,” he added.