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More stablecoin projects might soon find themselves in the SEC’s crosshairs.
On Friday, the SEC’s Senior Advisor for Digital Assets, Valerie Szczepanik, told a crypto-curious crowd at Austin’s SXSW conference that certain types of stablecoins “could raise issues under securities laws.”
Szczepanik broke down stablecoins into three categories: stablecoins “tied to some real asset, like real estate or gold and oil,” coins tied to a fiat currency held in reserve, and a third category that could become problematic under the law, she said.
“I've seen stablecoins that purport to control price through some kind of pricing mechanism, whether it's tied to the issuance, creation or redemption of another type of digital asset tied to it, or whether it is controlled through supply and demand in some way to keep the price within a certain band.”
It’s these kinds of projects, “where there is one central party controlling the price fluctuation over time,” that Szczepanik said “might be getting into the land of securities.”
While Szczepanik hedged a bit by saying the Commission would have to “look at the facts and circumstances” of each individual project, the SEC’s “crypto czar” said it all comes down to the expectations that stablecoin issuers impart on their buyers: “You're talking about folks who are buying into that ecosystem, or are buying this coin, with the expectation that somebody else is going to be holding a profit, or guaranteeing a profit, or holding the price at a certain level. Again, that could raise issues under securities laws.”
The legal status of stablecoins has been in question for some time, especially the class of “algorithmic stablecoins” that aren’t backed by any collateral at all.
In fact, last December, one such stablecoin project, Basis, abruptly closed up shop after raising a whopping $135 million from investors—and then hearing from the SEC that it would likely not be able to avoid being classified a security.
But crypto attorneys such Jake Chernisky have previously expressed concern over how the SEC or CFTC might ultimately come down on all manner of stablecoins, even those backed by fiat.
Szczepanik also noted that the SEC is unconcerned with what label a blockchain business slaps on their token—stablecoin, or otherwise—it will still be met with the same scrutiny:
“Folks like to put labels on things, but we'll always look behind the label to see exactly what's happening,” she said. “So you can call it a utility coin, call it a stablecoin, call it a consumptive coin or some other coin. We're going to look at the characteristics. What's the economic reality? What's happening with the transactions involving the coin? And we'll give it the label that it deserves under the law."
Her advice for crypto startups looking to stay on the Commission’s good side? Ask for permission, not forgiveness.
“Not to sound cliche, but we’d much rather people come to us and ask for [permission]—or come talk to us before they do something, rather than doing something and then coming in and asking for forgiveness.”
In other words, slow down and stop breaking stuff. How’s that for a trendy book title?