NFT Roadmap
"We believe that many, not all NFTs, will be deemed to be securities, and therefore, a compliant means of satisfying both Federal and State securities laws is required. This means instead of acting outside securities laws; one finds a way to do it within them." Doug Ellenoff, Partner EGS LLP
DENVER (PRWEB) February 03, 2022
The Securities and Exchange Commission is watching. It likely will not be long before the first enforcement action against a Non-Fungible Token (NFT) issuer is announced. The 80+ enforcement actions the regulators have taken to date on cryptocurrency, digital assets, and Initial Coin Offerings (ICO) only stand to prove the point.
The story is familiar: XYZ issuer peddles a digital asset, investors buy it with an eye on return, investors may or may not lose some or all their investment, regulators storm in, and facts and circumstances drive the path of their enforcement action. Punishment can be as painful as rescission and loss of license or as severe as jail time. Either way, the legal expense, and reputational risk are significant.
“The variety of use cases for NFTs, combined with rapid and significant growth in the number of offerings, and in some cases the promise of a large potential upside for investors, have made NFTs increasingly popular,” says Doug Ellenoff, Partner at Ellenoff Grossman & Schole, LLP. “This increased interest from the public at large, especially from would-be investors, could very likely be followed by increased scrutiny from regulators.” According to DappRadar, NFT sales volume scaled to $24.9 billion in 2021, compared to just $94.9 million in 2020. With such rapid growth, it should be no surprise that SEC Chair Gary Gensler recently said at an Investor Advisory Committee hearing, “… this is an asset class that belongs inside public policy frameworks of looking after investors, guarding against the illicit activity, and protecting our financial stability.” While discussing the broader token marketplace, NFTs are part of this by default.
“We believe that many, not all NFTs, like ICOs, will be deemed to be securities, and therefore, a compliant means of satisfying both Federal and State securities laws is required,” says Ellenoff. “This means instead of acting outside securities laws; one finds a way to do it within them.”
Luckily such a roadmap exists. It consists of creating an NFT, securitizing it, qualifying it via an exemption from registration with the Securities and Exchange Commission, issuing it on the blockchain, meeting secondary trading compliance requirements, then listing it on an Alternative Trading System (or a public stock exchange if you like).
Dalmore Group, a broker-dealer, specializing in helping companies raise capital online and having over 150 Regulation A+ issuers under its belt, is one player focused on this solution. Etan Butler, Chairman of Dalmore Group, said, “NFT issuers have a choice; they can either go at it alone with all of the regulatory and enforcement risks inherent in a developing marketplace selling unregistered securities. The other option for NFT issuers is to choose a more conservative and relatively cost-effective approach to vehicles like Regulation A+. In today’s market, the choice really should be easy.”
GUARDD is a technology solution provider that allows issuers to comply with their state Blue Sky requirements. With GUARDD, an issuer provides current and ongoing company and financial disclosures that are published in a National Securities Manual, qualifying for what is known as the Manual Exemption. “By using GUARDD to file disclosures, NFT issuers can qualify for exemption from registration in almost every state,” says Sherwood Neiss, CEO of GUARDD. “We also help our clients with the last mile: what they need to do to be compliant in the remaining states so that their NFTs can trade anywhere in the USA.”
Satisfying regulatory requirements allow exempt issuers to approach the secondary trading platform themselves. The PPEX ATS, operated by North Capital Private Securities, is one such provider with over 640 listed securities. PPEX offers both a lit market, where bids and offers are displayed for the ATS’s institutional participants, as well as a dark pool for buyers and sellers who wish to transact anonymously without broadcasting their interest. The PPEX ATS contains a central limit order book to monitor and match orders, report trades to regulators, and transmit transaction details to executing brokers, settlement agents, and custodians. All in a compliant manner.
Jim Dowd, the CEO of North Capital, said, “Public blockchain technology creates an immutable, public record of NFTs, but our API stack offers tools to facilitate compliance with securities laws, along with access to our regulated trading venue.” North Capital has been involved in digital assets for over four years. “We were involved in some of the first offerings of what we now call digital asset securities, so we have an appreciation for the regulatory complexity associated with NFTs.”
“Together, these three service providers provide a pathway for NFT issuers to comply with rather than avoid securities laws,” says Samson Williams, President of the Crowdfunding Professional Association (CfPA). The CfPA recently sent a petition and letter to the Securities and Exchange Commission asking for clarity on the Commission’s position on NFTs as a matter of investor protection. That letter can be found here.
-----------------------------
For more information:
Primary Issuance/Regulation A+: Dalmore Group (http://www.dalmorefg.com) specializes in helping companies raise capital online at scale through Regulations A+, CF, and D and has onboarded over 175 Regulation A+ issuers since 2019. Learn more about how Dalmore Group leads the way for primary issuance and secondary market trading of private securities. Keep up to date on the latest company news and information directly via Dalmore Group’s LinkedIn page.
Secondary Trading Compliance: GUARDD (http://www.guardd.com) is a technology solutions provider that assists issuers in complying with blue sky laws regarding the secondary transfer of securities. GUARDD was founded and is controlled by Sherwood Neiss, Jim Dowd (North Capital), and Doug Ellenoff (Ellenoff Grossman and Schole). EGS
Secondary Trading: Public-Private Execution Network (http://www.ppex.com) is an Alternative Trading System (ATS) that allows for secondary trading of unregistered securities, including digital assets.
The PPEX ATS offers investors access to liquidity through a structured, regulated alternative trading venue. Primary issuers can potentially access new pools of capital by encouraging the development of secondary markets for their securities.
Crowdfunding Professional Association: (http://www.cfpa.org) is a 501(c)(6) nonprofit trade group that was established shortly after the signing of the JOBS Act. The CfPA is dedicated to equitably representing the Crowdfunding industry and supporting the Securities and Exchange Commission (SEC) and Financial Industry Regulatory Authority (FINRA) on rulemaking while providing the industry with education, professional networking opportunities, and the tools necessary to cultivate a balanced and healthy ecosystem that will accelerate capital formation and ensure investor protection.