U.S. Securities and Exchange Commission

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U.S. Securities and Exchange Commission
SEClogo.png
Founded 1934
Headquarters Washington, D.C.
Products U.S. government securities regulation
Key People Gary Gensler, Chairman (April 14, 2021 - )
Twitter @SEC_news
Web site www.sec.gov

The U.S. Securities and Exchange Commission (SEC) is the U.S. regulatory agency charged with the oversight of securities markets and market participants in the U.S. Its mission is to protect investors, to maintain fair, orderly, and efficient markets, and to facilitate capital formation.

Organization and purpose

The SEC has up to five commissioners, all of whom are named by the U.S. president, with staggered five-year terms. One appointee is designated as chairman of the SEC and serves as the agency's chief executive. By law, no more than three of the commissioners may belong to the same political party. Gary Gensler is the current SEC chairman. Gensler was nominated as chair by President Joseph R. Biden on February 3, 2021 and confirmed by the U.S. Senate on April 14, 2021. [1]

The laws and rules that govern the securities industry in the U.S. derive from a singular concept. According to the SEC, "All investors, whether large institutions or private individuals, should have access to certain basic facts about an investment prior to buying it, and so long as they hold it. To achieve this, the SEC requires public companies to disclose meaningful financial and other information to the public. This provides a common pool of knowledge for all investors to use to judge for themselves whether to buy, sell, or hold a particular security. Only through the steady flow of timely, comprehensive, and accurate information can people make sound investment decisions."[2]

The SEC oversees securities exchanges - including securities options exchanges, securities brokers and dealers, investment advisors, and mutual funds. In this area, the SEC is concerned primarily with promoting the disclosure of important market-related information, maintaining fair dealing, and protecting against fraud.

Through the SEC's enforcement authority, each year hundreds of civil enforcement actions are brought against individuals and companies for violations of the securities laws. Typical infractions include insider trading, accounting fraud, and providing false or misleading information about securities and the companies that issue them.

Investor information is a major source of actions brought by the SEC. To help support investor education, the SEC offers educational information on its Internet Web site, which also includes the EDGAR database.[3] of disclosure documents that public companies are required to file with the SEC. The SEC's Office of Investor Education and Advocacy, [4] which provides a variety of services to address the problems and questions investors face, also serves in advisory capacity to the Alliance for Investor Education.[5]

Though it is the primary overseer and regulator of the U.S. securities markets, according to the SEC, it "works closely with many other institutions, including Congress, other federal departments and agencies, the self-regulatory organizations (e.g. the stock exchanges), state securities regulators, and various private sector organizations. In particular, the chairman of the SEC, together with the chairman of the Federal Reserve, the Secretary of the Treasury, and the chairman of the Commodity Futures Trading Commission, serves as a member of the President's Working Group on Financial Markets."

The SEC's functional responsibilities are organized into four divisions and 18 offices, each of which is headquartered in Washington, DC. The Commission has approximately 3,800 staff located in Washington and in 11 regional offices throughout the country.

Current Commissioners

History

The SEC was created in 1934 by the Securities Exchange Act of 1934 (the '34 Act) after the stock market crash of 1929, during the days of the ensuing Great Depression. Prior to the 1929 crash, there was little support for federal regulation of the securities markets.

According to the SEC, "Tempted by promises of 'rags to riches' transformations and easy credit, most investors gave little thought to the systemic risk that arose from widespread abuse of margin financing and unreliable information about the securities in which they were investing. During the 1920s, approximately 20 million large and small shareholders took advantage of post-war prosperity and set out to make their fortunes in the stock market. It is estimated that of the $50 billion in new securities offered during this period, half became worthless."

Congress passed the Securities Act of 1933 and a year later the '34 Act, which were designed to restore investor confidence in U.S. capital markets by providing investors and the markets with more reliable information and clear rules of honest dealing. President Franklin D. Roosevelt appointed Joseph P. Kennedy, former President John F. Kennedy's father, to serve as the first chairman of the SEC.

Monitoring the securities industry requires a highly coordinated effort. Congress established the Securities and Exchange Commission (SEC) in 1934 to enforce the newly-passed securities laws, to promote stability in the markets and, most importantly, to protect investors.

In July of 2009, the Obama administration sent Congress legislation designed to protect investors by bolstering the authority of financial and banking regulators including the SEC. The proposal was part of the sweeping plan for overhauling the U.S. financial rule book that the administration is pressing lawmakers to enact to help avert another meltdown. It sought to put investment advisers providing services to retail investors and stockbrokers under the same standards of conduct, and to strengthen rules governing the timing and quality of disclosures by investment funds.[6]

On September 5, 2014, the SEC named Tracey McNeil, a longtime SEC official, its first ever ombudsman, a role mandated by the 2010 Dodd-Frank financial overhaul. McNeil acts as a liaison in resolving problems that retail investors may have with the Commission.[7]

On August 5, 2015, the SEC approved a final rule requiring companies to disclose the pay gap between chief executives and rank-and-file employees, marking the culmination of years of heated debate over the measure, which is required by the 2010 Dodd-Frank law. The vote was 3-2, with the two Republicans on the commission opposing the rule.[8]

On December 9, 2020, the SEC voted to adopt new rules governing the collection, consolidation and dissemination of market data for exchange-listed national market system stocks, commonly known as NMS market data. The update of that infrastucture was the first since it was implemented in the late 1970s. The change allowed more detailed data showing supply and demand for stocks to be added to public feeds, called securities information processors, or SIPs.

The new SEC market data rules also introduced a decentralized consolidation model under which competing consolidators, rather than the existing exclusive SIPs, would collect, consolidate and disseminate certain NMS information. The "exclusive" SIPs include major U.S. exchanges like the New York Stock Exchange and Nasdaq. The exchanges strongly opposed the changes. [9][10]

In February 2021, Nasdaq, the New York Stock Exchange (NYSE) and Cboe Global Markets each sued the SEC over its new rules on SIPs, seeking to block the overhaul of the public data feeds. The exchanges maintained the rule changes would undermine their proprietary data businesses. [11] [12] [13]

Cryptocurrencies

Along with the U.S. Commodity Futures Trading Commission (CFTC) the SEC is tasked with regulating cryptocurrency issuance and trading when those instruments are deemed to be securities under U.S. law. In June 2018, the SEC appointed Valerie Szczepanik as associate director of the Division of Corporation Finance and senior adviser for digital assets and innovation.[14]

Starting in 2013, the SEC has alerted the investing public about some of the risks associated with cryptocurrency investments and investment schemes.[15][16]

In December 2018, Szczepanik said at a New York event hosted by Wall Street Blockchain Alliance (WSBA) that some digital token projects, such as initial coin offerings (ICOs) could possibly bypass SEC regulations by obtaining "no-action" letters from the SEC. This would require the SEC to examine their project and verify that their offering is not a security.[17]

In January 2020, the SEC published a document describing the commission's priorities for examination in 2020. The document inclued a section on digital assets in which it said that many investors don't understand the differences between digital assets and traditional assets. "Examinations will assess the following: (1) investment suitability, (2) portfolio management and trading practices, (3) safety of client funds and assets, (4) pricing and valuation, (5) effectiveness of compliance programs and controls, and (6) supervision of employee outside business activities," the report said.[18][19]

Then, thirteen months later on February 26, 2021, the agency's Division of Examinations published a risk alert about digital assets in which it said, "This Risk Alert provides observations made by Division staff during examinations of investment advisers, broker-dealers, and transfer agents regarding Digital Asset Securities that may assist firms in developing and enhancing their compliance practices. In addition, as more securities industry participants seek to engage in digital asset-related activities, this Risk Alert provides transparency about areas of focus for the Division’s future examinations."[20]

Exchange traded bitcoin products and funds (Bitcoin ETF)

Cboe's Bats BZX Exchange applied to the SEC in June 2016 to list shares in the Winklevoss Bitcoin Trust. Under delegated authority the SEC's Division of Trading and Markets disapproved the application in March 2017. Shortly thereafter, Bats requested a review by the commissioners. The Commissioners disapproved the application in July 2018 noting that the record presented by the application and the record before them did not demonstrate that bitcoin and bitcoin markets are "uniquely resistant to manipulation." Commissioner Hester M. Peirce dissented.[21]

Acting under authority delegated by the Commission, on August 22, 2018 the SEC's Division of Trading and Markets disapproved another application from VanEck for the BZX Exchange to list bitcoin-based ETFs. These were to be tied to bitcoin futures contracts traded on the affiliated Cboe Futures Exchange and the CME Group rather than to bitcoins themselves. In accordance with the SEC's guidance on the Winklevoss Bitcoin Trust ETF proposal, BZX asserted that it would have access to the necessary surveillance information from those CFTC-regulated exchanges through all of their memberships in the Intermarket Surveillance Group. In this case, the SEC's disapproval was based on the inadequate size of the bitcoin futures market relative to the markets for bitcoin itself.[22] On the same date the SEC also disapproved proposals from Intercontinental Exchange Group Inc.'s NYSE Arca Exchange for the same reason - that the record did not demonstrate that the futures markets were of significant size relative to bitcoin.[23][24] On August 23, 2018 the SEC informed both BZX and Arca that the disapprovals were to be reviewed by the full Commission.[25] Commissioner Peirce announced the review on her Twitter feed the same day.[26]

In September 2018, the SEC sought public feedback about a bitcoin ETF and cryptocurrency regulation in general. Naeem Aslam, an analyst at ThinkMarkets U.K., wrote in October that bitcoin "needs some sort of blessing" from regulators in order for cryptocurrency markets to rally. He went on to say that the SEC seeking public opinion about a bitcoin ETF was a "positive sign," saying that he believed the commission was attempting to accurately assess the cryptocurrency markets landscape while respecting public opinion.[27]

In late November, the SEC's chairman, Jay Clayton, said at a conference in New York City that the SEC was unlikely to approve of a bitcoin ETF any time soon. Clayton said the main reason for this was the lack of safeguards in the cryptocurrency space protecting users from hacking attacks or price manipulation.[28]

On January 23, 2019, the SEC announced that Cboe had withdrawn its proposal for a rule change that would have allowed it to list and trade shares of a bitcoin ETF - specifically, the VanEck SolidX Bitcoin Trust. Cboe said in an email statement that the plan was related to the effects of the U.S. government shutdown occurring at the time. Cboe also said that the company planned on refiling a similar proposal at a later date with the SEC.[29][30]

A week later, on January 31, VanEck digital asset strategy director Gabor Gurbacs announced that the firm, as well as Cboe and SolidX, had re-filed the request with the SEC.[31]

In February 2019 Reality Shares ETF Trusts, a division of Blockforce Capital, submitted a proposal to the SEC for an ETF that would have been tied to Cboe and the CME Group's bitcoin futures products. They withdrew that proposal a few days after submitting it.[32] Around the same time, Bitwise filed a proposal for a bitcoin ETF, joining VanEck/SolidX's proposal.[33]

Cryptocurrencies as securities

In July 2017 the SEC issued an investigative report about the DAO, in which it clarified its views on the rapidly developing markets for ICOs, which were gaining widespread investor attention at the time.[34] The DAO was a German cryptocurrency-based venture capital fund which failed shortly after its launch in May 2016. According to the report, almost any cryptocurrency that results from an ICO would be viewed as a security in accordance with the "Howey Test." Subsequently, the SEC and its chairman, Jay Clayton, made a number of statements and issued warnings to the public regarding ICOs.[35][36] In May 2018, to alert the public to the risks of the ICO market, the SEC launched a "Potemkin Village" website, called HoweyCoins.com, in order to caution potential traders and demonstrate the ease with which an investor scam can be deployed.[37]

The director of the SEC Division of Corporation Finance, William Hinman, advised in a speech on June 14, 2018 that the great majority of digital and cryptocurrencies were probably securities under the Howey test. While ether might have been originally issued as a security, Hinman expressed the view that both bitcoin and ether likely did not function as securities in the current marketplace, removing them from SEC jurisdiction.[38]

On September 11, 2018 U.S. federal district Judge Raymond Dearie in New York affirmed the SEC's jurisdiction over ICOs when he denied the motion by the defendant, Maksim Zavlavskiy, to dismiss the SEC's complaint. Zavlavskiy asserted that his ICO should be regulated as a currency not a security. This was the first legal test for the SEC's authority over the ICO market.[39]

In November, the SEC published a statement on its website called "Statement on Digital Asset Securities Issuance and Trading." The statement referenced the commission's recent crackdown on crypto-centric companies like TokenLot and AirFox, as well as the founder of EtherDelta, as examples of how U.S. securities laws will be enforced with cryptocurrency companies in the future.[40]

Broker dealer custody

Saying "The Commission supports innovation in the digital asset securities market to develop its infrastructure," the agency published a statement about proper broker dealer custody of digital assets along with by a request information about current practices for custody of digital assets. The commission acknowledged that current practices as well as the commercial needs of parties dealing with digital securities could differ from custody practices for securities in more traditional formats. The notice said that the statement, which was directed at broker dealers which solely conducted business in digital securities, remained in force for a period of five years from the date of its publication in the Federal Register. The solicitation for information was set to expire in 60 days.[41]

Trading platforms

On March 7, 2018 the staff of the SEC's Divisions of Enforcement and Trading and Markets issued guidance to investors who might use unregistered platforms to trade cryptocurrencies and security tokens. The statement noted that many online platforms are called "exchanges" by their proprietors although they do not fulfill the requirements of a securities exchange or other SEC regulated platform.[42]

In July 2018, FINRA approved Coinbase's acquisition of three companies already registered as broker-dealers - Keystone Capital Corp., Venovate Marketplace Inc., and Digital Wealth LLC - which Coinbase said would enable it to offer security tokens legally, under SEC authority.[43]

Form D exemptions

A popular practice for ICOs wishing to avoid punitive measures by the SEC is filing for a Form D exemption. This practice, which became popular among ICOs in 2018, involves filing SEC Form D, which are notices filed by a company for an offering that is exempt from SEC registration requirements. Companies filing Form D have to do so within 15 days after the first sale of a securities offering, rather than before the sale. Form D notices require that only "accredited" investors can invest in this sale; accredited investors include individuals with a net worth exceeding $1 million, or have consistently made over $200,000 per year in income in the prior two years before the sale, or companies that have over $5 million in assets.[44][45]

Cryptocurrency market surveillance

The SEC published a notice on January 31, 2019, requesting help from the private sector - specifically, Big Data firms - to find a way to "monitor risk and improve compliance" for the "most widely-used" blockchain ledgers by trade volume. The SEC also said that this tool should be in an "easily viewable" format.[46][47]

"Plain English" guidance

In November 2018, William Hinman announced that he was heading up the development of a document that would provide "plain English" guidance for companies considering launching initial coin offerings. The document was published on April 3, 2019.

"We try to give an example of what might be a security and also what might not be," he told Coindesk the day the framework document was published. "We’re also trying to say that we recognize in certain cases the instrument is offered and sold for actual use...one thing we’re trying to make clear in this analysis is that not one of these factors is dispositive, you have to look at the whole mix.”[48] The document, which was entitled, "Framework for 'Investment Contract' Analysis of Digital Assets," emphasized the use of the Howey Test as a key tool for coin issuers and business owners who are unsure if their product could be considered a security. The document also firmly stated that companies offering securities products must be registered with the SEC before beginning the sale of digital assets that can be considered securities.[49]

The guidance document was widely criticized, some even going so far as to say that it felt like "an overt declaration of war" on cryptocurrencies. Common criticisms were that the document reaffirmed that bitcoin and Ether are not securities because they are decentralized, which could potentially spell regulatory trouble for newer blockchain projects. Some reacted to its treatment of "no-transferability" digital tokens as an unhelpful contribution to the broader discussion of cryptocurrency and blockchain regulation, because digital tokens that work in this way lack the "most valuable quality" of cryptocurrency.[50]

Tokenization

In a wide-ranging conversation during a webinar on October 1, 2020 hosted by the Digital Chamber of Commerce, SEC Chairman Clayton told the audience that the agency was interested in supporting tokenized securities provided they fulfill other regulatory requirements. He specifically mentioned support for tokenized ETFs, though not for an ETF on bitcoin.[51]

BSTX disapproval

Boston Security Token Exchange ([BSTX]) is a joint venture between BOX Exchange and tZero.

On September 27, 2019 BOX Exchange filed proposed changes to its options exchange rules to permit it to list equity securities at tokens traded on BSTX. In its request for comments on the proposal that the agency published on October 11, 2019 the SEC characterized the BSTX proposal saying, ". . . BSTX would operate a fully automated, price/time priority execution system for the trading of “security tokens,” which would be equity securities that meet BSTX listing standards and for which ancillary records of ownership would be able to be created and maintained using distributed ledger (or “blockchain”) technology."[52] The SEC published revisions to BSTX's proposed rulebook on February 28, 2020.[53]

On December 28, 2020, the SEC published in the Federal Register its order disapproving the rule change. The commission said that, among other things, the proposed design would lead to inaccurate public reporting of transactions. The commission also complained that the materials submitted by the exchange did not contain sufficient information about the workings of the systems for the commission to assess the proposal fully. The order also indicates that there had been a number of interactions between the SEC and BSTX which failed to resolve the SEC's issues.[54]

Enforcement actions

In January 2018, the SEC sued Jared Rice Sr., CEO of the cryptocurrency platform AriseBank for issuing unregistered securities during an ICO. Stanley Ford, the co-founder of AriseBank, was sued on the same charges.[55]

After publishing its report on the DAO in July 2017, the SEC took enforcement actions against a number of entities for various violations of securities laws. Some of the most prominent ones involving ICOs are RECoin Group, PlexCorps, Munchee, AriseBank, Jon E. Montroll and BitFunder, CentraTech, Titanium, and Tomahawk, in which cases the SEC alleged fraud in addition to failure properly to register.[56][57] In April 2017, the commission moved against Longfin, a New York-based cryptocurrency firm, for fraud in connection with the issuance of new securities.[58]

According to the National Law Journal, 30 percent of ICO-related lawsuits filed in 2018 were filed by the SEC.[59]

In its first registration case against a trading platform, the SEC on November 8, 2018 announced that it had settled charges against EtherDelta for trading tokens without registering as a securities exchange. The SEC also settled charges against EtherDelta's founder, Zachary Coburn.[60][61]

On February 20, 2019, the SEC announced that cryptocurrency startup Gladius Network LLC had settled charges of running an unregistered securities offering through their ICO in 2017. The SEC said that this ICO was not only unregistered but did not qualify for any exemptions under current registration laws. The SEC also said they would not be imposing a penalty on the startup since Gladius self-reported its token sale and had "expressed an interest in taking prompt remedial steps," according to the SEC's official press relase on the matter.[62][63]

In April 2019, the U.S. SEC issued an official "no-action" letter to a U.S. company called TurnKey Jet, Inc., a company that plans to sell digital tokens to people who sign up for its membership program. According to TurnKey, these tokens can be used to charter a private jet, can only be traded among members of the program, and cannot be bought back for a premium. In the letter, the SEC stated that its "no-action" policy was contingent upon several rules, including, "TKJ will restrict transfers of Tokens to TKJ wallets only, and not to wallets external to the platform." This was the first time that the SEC issued such a letter to a company offering digital assets.[64][65]

In June 2019, the SEC filed another enforcement action against Longfin - once again charging the company with fraud. The SEC said in a press release that Longfin CEO Vankata S. Meenavalli organized a fraudulent Regulation A + public offering by falsely reporting its revenue. It also alleged that Andy Altahawi misrepresented certain information to Nasdaq in order to get shares listed.[66][67]

In August 2019, the SEC filed an emergency action order against Reggie Middleton, founder of Veritaseum (VERI), an ICO worth almost $15 million. The SEC alleged that Middleton had conducted a fraudulent ICO in 2017, and had manipulated the value of the securities he had offered by propagating fake information about his business, as well as misappropriating $520,000 worth of his investor's money for personal use. The Commission also asked the District Court for Eastern New York to ban him from ever operating a public company or digital asset offering ever again. The SEC obtained a temporary restraining order on August 13, freezing his assets, as well as accounts at Bank of America, Citi, JPMorgan Chase, Kraken, and Gemini.[68] Later that month, the SEC charged token issuers Bruce Bise and Sam Mendez with committing fraud with two different token sales. Bise and Mendez were charged for selling Bitqy and BitqyM tokens to over 13,000 investors, promising Bitqyck tokens would provide fractional shares of stock in Bitqyck, a cryptocurrency exchange they started, through smart contracts, while BitqyM tokens would provide interest in a crypto mining facility. The SEC said they misrepresented QyckDeals, saying that the defendants didn't actually own any mining facilities, that they were operating an unlicensed exchange, and that they ran an unregistered securities offering. Bitqyck was ordered to pay $8.5 million in civil penalties as well as disgorgement and prejudgement interest. Also, Bise will pay $890,254, and Mendez will pay $850,022.[69]

In an announcement published the same day as Chairman Clayton said he was stepping down at the end of 2020, the commission published a statement about its activities during Clayton's tenure, noting that, among other things, it had brought 56 digital assets cases and launched the Cyber Unit since Clayton's arrival in May 2017.[70]

Kik

In late 2018, messaging app service Kik received a Wells notice from the SEC about its 2017 ICO (a Wells notice is a notice that the SEC intends to bring an enforcement action against the recipient). Livingston, the CEO, told the Wall Street Journal that Kik had responded. According to Livingston, the SEC believes that Kik sold unregistered securities when it conducted its ICO. Also according to Livingston, the SEC does not allege fraud. Kik reportedly intends to fight the SEC's claim that Kin are securities under U.S. law. If such a case were to go to trial, it might provide the first legal test of the SEC's approach to ICOs as securities offerings.[71] In June 2019, the SEC filed a lawsuit against Kik for $100 million, alleging that it had violated Section 5 of the Securities Act of 1933. Steven Peikin, co-director of the SEC's Division of Enforcement, said that "companies do not face a binary choice between innovation and compliance with federal securities laws" in a press release.[72] Kik's general counsel, Eileen Lyon, said that the SEC's complaints about Kik's ICO makes inaccurate assumptions which “stretch the Howey test well beyond its definition.”[73]

XRP

After years of widespread speculation about whether XRP (Ripple) constituted investment contracts under U.S. law, the agency filed a civil charges suit against Ripple, Larsen and Garlinghouse in U.S. District Court for the Southern District of New York on December 22, 2020. According to the head of the SEC's enforcement division, Stephanie Avakian, "Issuers seeking the benefits of a public offering, including access to retail investors, broad distribution and a secondary trading market, must comply with the federal securities laws that require registration of offerings unless an exemption from registration applies."[74]

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