Ensuring that investors are fully accredited requires, as the SEC spells out plainly, “reviewing documentation, such as W-2s, tax returns, bank and brokerage statements, credit reports and the like.” In other words, it involves a lot more than just checking a box.
Many companies that thought they did properly limit their ICO to accredited investors are now finding out that in the eyes of the SEC, they didn’t.
Robert Cohen, chief of the cyber unit in the SEC’s enforcement division, likens it to a spectrum. When the SEC calls up a company that did an ICO and asks how the company limited its ICO to certain investors, “Some companies tell us the name of the law firm that advised them, explain the know-your-customer procedures they followed, and show us an investor list that is limited to accredited investors,” he says. “At the other end of the spectrum, some point to a website statement about limiting the ICO to some investors, and possibly checkboxes, and that’s it.”
‘The law was pretty clear’
Some of the people particularly surprised to be in trouble are those who did their ICO as a SAFT, a designation that was intended specifically to be more compliant with securities law.
But some onlookers have little sympathy. Cardozo Law School professor Aaron Wright, who co-authored a paper that questioned the legality of the SAFT model, says, “There could have been other ways they could have structured it, like selling a digital good to people who actually wanted to use it, instead of predominately to speculative investors. They could have talked to the SEC first. I think the law was pretty clear that if you sell something to an investor, it’s likely a security—folks just wanted to engage in token sales, so they just kind of flouted it.”
In December 2017, the SEC shut down the $15 million ICO of a startup called Munchee and forced the company to refund the buyers. Munchee had advertised that its token would go up in value; promises of financial returns are a red flag for the SEC.
In January 2018 the SEC shut down the ICO of AriseBank, which had raised $600 million of a $1 billion goal, for falsely stating it had bought an FDIC-insured bank. In April 2018 the SEC shut down the $32 million ICO of Centra, which had been promoted by boxer Floyd Mayweather and rapper DJ Khaled, for using “misleading marketing” and “paid celebrities” to make false claims. Last month, the SEC charged TokenLot, which called itself an “ICO Superstore,” with being an unregistered broker-dealer, and charged Crypto Asset Management