On December 11, 2017, the U.S. Securities and Exchange Commission (SEC) issued a cease-and-desist order to Munchee Inc. (Munchee), a company that was in the process of a $15 million initial coin offering (ICO), for selling unlicensed securities. The SEC found that the ICO targeted investors, with the expectation of future profits, rather than users of the company’s products, with the explicit aim of using the token sale proceeds to further develop its iPhone application and corresponding “ecosystem.” Munchee, upon being contacted by the SEC, stopped the sale and returned all ICO proceeds.
Immediately following the publication of the Munchee Order, SEC Chairman Jay Clayton released a public statement on cryptocurrencies and ICOs, reiterating the SEC’s focus on substance over form in evaluating the implications of the federal securities laws on ICOs. Chairman Clayton specifically cautioned against assuming that any particular token will be considered a utility. Chairman Clayton’s comments suggest that the SEC may consider a true utility token to be an exception to the rule, which warrants caution and forethought when proceeding with any unregistered token sale. These developments represent the latest guidance from the SEC, as it endeavors to further define the bounds of regulation in the burgeoning ICO market.
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