In recent months, a variety of companies have considered “initial coin offerings” (ICOs) as a way to generate money for their businesses. Companies considering ICOs should be aware that, depending on the structure of the coins they are offering, an ICO may involve an offering and sale of securities subject to regulation by the Securities and Exchange Commission (SEC) and/or swap contracts subject to regulation by the Commodity Futures Trading Commission (CFTC). An ICO also may subject a company to potential regulation as a money services business, which could mean that the company needs to comply with anti-money laundering, money transmission, and other applicable laws. Importantly, although the coins being issued may be called tokens or referred to in some other way, regardless of what they are called, the following discussion applies.
When do the SEC and/or CFTC have jurisdiction over an ICO and the coins being offered?
The following flow chart provides an overview of when companies are most likely to need to consider SEC and/or CFTC regulatory issues: