Funds and Managers Must Be Wary of State, in Addition to Federal, Regulatory Scrutiny of ICOs

On March 27, 2018, the top securities regulator in Massachusetts issued consent orders halting five initial coin offerings (ICOs) based on allegations that the tokens constituted unregistered securities in violation of state law. While there has been increased federal scrutiny of ICOs by the SEC and the CFTC, these orders suggest that cryptocurrency market participants should also be wary of state regulators. This article examines the recent Massachusetts orders; reviews actions taken by other state securities regulators against those involved in the ICO and cryptocurrency markets; and discusses recent legislation adopted by certain states to regulate, or, in some cases, exempt from state regulations, ICOs and virtual currencies. For more on the position of federal regulators as to cryptocurrencies, see “Virtual Currencies Present Significant Risk and Opportunity, Demanding Focus From Regulators, According to CFTC Chair” (Feb. 8, 2018); and “SEC Cyber Unit Files Charges Against Allegedly Fraudulent ICO” (Jan. 11, 2018).

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