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Tap the blue button below and navigate to the download page. There you will choose the available download method. The Staff alerted investors that the SEC did not review the standards for picking digital assets for trading or the trading protocols used by the trading platforms and that these standards or protocols should not be equated to, or assumed to meet, the standards of an SEC-registered national securities exchange.
In addition, although many online digital asset trading platforms appear to perform exchange-like functions, investors using these platforms should not believe that the pricing and execution data offered by the online digital asset trading platforms would have the same integrity as that provided by national securities exchanges.
The BitFunder complaint is the first time the SEC filed charges against a digital or crypto asset trading platform using bitcoin as the payment currency, alleging that BitFunder operated as an unregistered securities exchange. The SEC did not allege that bitcoin is a security. To assess whether registration as an exchange is necessary, operators of digital and crypto asset trading platforms should first determine whether any of the digital or crypto assets traded on their platforms are securities.
The test for whether tokens are securities is whether token purchasers invested in a common enterprise with reasonable expectations of profits generated through the efforts of others. The SEC recently determined that an initial coin offering ICO for so-called utility tokens was a securities offering since, among other attributes the ICO promoters emphasized the secondary market trading potential of the tokens.
Trading platform operators should consider how the SEC determined that BitFunder operated as an unregistered exchange. If the operators of a digital or crypto asset trading platform determine that the platform meets the criteria described above, the platform is required to be registered with the SEC as a national securities exchange unless it can rely on an exemption from registration.
Practically speaking, this means that the platform must either register as an exchange or rely on the exemption from exchange registration available to an alternative trading system ATS pursuant to Regulation ATS.
The BitFunder case makes clear that the SEC believes cyber theft is material to investors in tokens deemed securities that are traded on a crypto platform. The SEC expects prompt disclosure to investors of all material facts related to their investments, which includes disclosure of cyber theft.
Market infrastructure entities like securities exchanges and ATS are subject to extensive regulation, including a host of requirements related to cybersecurity. The regulatory requirements for exchanges and certain ATS impose system requirements regarding capacity, integrity, resiliency, security, and compliance.
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