On April 3, 2019, the Strategic Hub for Innovation and Financial Technology of the U.S. Securities and Exchange Commission (“SEC”) published two pieces of guidance on when a blockchain-enabled digital asset will, or will not, be considered a security.
The first piece of guidance (the “TKJ No-Action Letter”) was a no-action letter issued by the SEC’s Division of Corporation Finance in response to a request from TurnKey Jet, Inc., a Florida-based air carrier and air taxi operator. The TKJ No-Action Letter represents the first time that the SEC staff has indicated that it would not recommend enforcement action to the SEC if, in reliance on counsel’s opinion that the digital assets are not securities, the subject entity offers and sells securities without registration under the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended.
The second piece of guidance came in the form of a “Framework for ‘Investment Contract’ Analysis of Digital Assets” that is intended to serve as “an analytical tool to help market participants assess whether the federal securities laws apply to the offer, sale, or resale of a particular digital asset.”
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