Kenneth Silverman and John Corrado Publish Article in Bloomberg Law on SEC Crypto Guidance for Issuers

Olshan Corporate partner Kenneth Silverman and associate John Corrado published an article in Bloomberg Law entitled “The SEC Drew New Crypto Lines. What Issuers Need to Consider Now.” In the article, the Ken and John discuss how the SEC’s interpretive release outlines crypto asset categories and what issuers should consider after launch, with a focus on ongoing communications and compliance implications. “The immediate question for crypto asset issuers isn’t only how to launch, but also what happens afterward,” they write. “In practice, the issuer’s ongoing communications and market-facing conduct, such as offering materials, marketing claims, website language, and public statements, can keep issuer ‘managerial efforts’ connected to the asset in the eyes of purchasers.” Ken and John explain that certain crypto assets may not be inherently securities but can still be sold under investment contracts depending on how they are offered and marketed. They also outline the Howey test framework and note the practical impact on primary issuances and secondary market transactions. “The SEC expressed its view that four categories—digital commodities, digital collectibles, digital tools and certain stablecoins—aren’t inherently securities under federal securities laws,” they write. “However, such crypto assets could be sold under investment contracts and therefore subject to federal securities laws.”