Fund managers that engage in selling efforts must register as broker-dealers unless they can take advantage of the issuer exemption (Rule 3a4-1), which prohibits the receipt of specific transaction-based compensation.
Up until now, the SEC has taken the position that ICOs are securities offerings, subject to the Securities Act’s registration and disclosure requirements. This no-action letter and companion guidance suggest that the SEC may back off its aggressive position and allow the digital token world to evolve organically. What is unclear is whether any ICO sponsor should go forward without a no-action letter.
sponsor of a private fund agreed to disgorge its management fees for soliciting
investors without a pre-existing, substantive relationship. The SEC accuses the fund sponsor and its
principal with engaging in a public solicitation through a website and media
interviews. The respondents had filed a
Form D Notice of a private offering. The
alleged public solicitation violated Section 5 of the Securities Act, which
requires a registration statement before engaging in a public offering. During the unlawful offering, the value of the
fund declined 62%, which amounted to over $300,000. The Order notes that the principal had no
prior securities industry experience. The SEC declined to impose further
penalties because of the respondents’ financial condition.
Most securities professionals know that you cannot raise capital in a private offering unless the offeror can document a pre-existing relationship with potential investors. However, as FinTech and the securities markets intersect, the neophytes may not realize that they are tripping over the regulatory wires. This respondent is lucky that the SEC didn’t order full rescission of the offering and the refund of the amount lost.
It is a HUGE warning sign when a fund manager fails to deliver audited financial statements, regardless of the ostensible reasons for delay. What may be most shocking is that this firm engaged in unlawful conduct for at least 11 years until the SEC uncovered wrongdoing during a routine OCIE exam in 2018.