General SEC Updates
Custody of Digital Asset Securities by Special Purpose Broker-Dealers. Just in time for Christmas, the SEC issued a Statement conveying its position that, for five years, a broker-dealer operating under specified circumstances will not be subject to enforcement. To take advantage of this non-enforcement position, broker-dealers must first acknowledge physical possession or control of customers’ fully-paid and excess margin digital asset securities for the purpose of Securities Exchange Act Rule 15c3-3(b)(1). The Commission is also requiring a broker-dealer to:
Have exclusive access to and the ability to transfer the digital asset securities;
Limit its business to digital asset securities;
REGULATORY UPDATES
SEC Proposes Conditional Exemption for Finders Assisting Small Businesses with Capital Raising
On October 7, 2020, the Securities Exchange Commission (the “SEC”) proposed a conditional exemption from broker registration requirements for certain “finders” who assist issuers with raising capital in private markets. If adopted, the proposed exemption would permit natural persons to engage in certain limited activities involving accredited investors without registering with the SEC as brokers. The proposed exemption seeks to assist small businesses in raising capital and to provide regulatory clarity to investors, issuers, and the finders who assist them. The proposed exemption would establish guidelines for both registered broker activity and limited activity by finders that would be exempt from registration.
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In a year-end change of course, the SEC identified the minimum steps that broker-dealers must take when acting as custodians of digital asset securities.
On December 23, 2020, the US Securities and Exchange Commission (SEC) staff issued a statement (Custody of Digital Asset Securities by Special Purpose Broker-Dealers) (the Statement) outlining its position on how broker-dealers must operate when acting as custodians of digital asset securities[i] in order to avoid enforcement action. The SEC’s Statement, which will be in effect for five years, is intended to encourage innovation while providing both industry participants and the SEC the opportunity to develop best practices with respect to the custody of digital asset securities.
Friday, January 8, 2021
SEC Issues Statement on Custody of Digital Asset Securities by Special Purpose Broker-Dealers
On December 23, 2020, the Securities and Exchange Commission issued a statement and request for comment relating to custody of digital asset securities by broker-dealers, including certain conditional, time-limited relief for such arrangements. The statement will become effective 60 days after its publication in the Federal Register.
Most significantly, the SEC’s statement indicates that, for a five-year period, a broker-dealer will not be subject to an SEC enforcement action on the basis that the broker-dealer has deemed itself to have obtained and maintained physical possession or control of customer fully paid and excess margin digital asset securities for the purposes of paragraph (b)(1) of SEC Rule 15c3-3 (the Customer Protection Rule), which requires such possession or control,
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SEC Issues Statement and Requests Comment Regarding the Custody of Digital Asset Securities by Special Purpose Broker-Dealers
FOR IMMEDIATE RELEASE
Washington D.C., Dec. 23, 2020
The Securities and Exchange Commission today issued a statement and request for comment regarding the custody of digital asset securities by broker-dealers in order to encourage innovation around the application of Securities Exchange Act Rule 15c3-3 to digital asset securities.
The statement sets forth the Commission’s position that, for a period of five years, a broker-dealer operating under the circumstances set forth in the statement will not be subject to a Commission enforcement action on the basis that the broker-dealer deems itself to have obtained and maintained physical possession or control of customer fully paid and excess margin digital asset securities for the purposes of paragraph (b)(1) of Rule 15c3-3. These circumstances, among other things, include t