#182 - Lewis Cohen explains new SEC & CFTC token guidance

When does transacting in a crypto asset become a securities transaction? The SEC and CFTC recently issued an interpretation clarifying how the federal securities laws apply to certain crypto assets and transactions involving crypto assets.

Joining to discuss that is Lewis Cohen, co-chair of Cahill’s digital assets and emerging technologies practice and one of the leading experts on the application of U.S. securities laws to crypto.

Timestamps:

➡️ 2:26 — Why a token can be a non-security asset, but still sold in a securities transaction
➡️ 4:21 — The SEC’s “attachment and separation” concept explained
➡️ 7:22 — Secondary market transactions and the limits of existing case law
➡️ 11:15 — Why third parties may be exposed to securities law risk
➡️ 14:09 — Who counts as an “issuer” in crypto—and why the concept breaks down
➡️ 17:56 — What qualifies as a promise or representation under Howey
➡️ 23:27 — Why disclosure—not classification—is the real solution
➡️ 25:46 — Can an investment contract “detach” once promises are fulfilled?
➡️ 30:19 — Civil liability, enforcement risk, and second-order market effects
➡️ 34:42 — The danger of bifurcated markets and uneven information access

Sponsor: Day One Law, a boutique corporate law firm founded by Nick Pullman. Nick and his team at Day One provide strategic legal counsel to startups, crypto projects, and Web3 innovators. ⁠You can get in contact with them via this link⁠: ⁠⁠https://www.dayonelaw.xyz/#contact

Resources:

📓 SEC’s interpretive release on the application of security laws to crypto assets and transactions

✍️ Lewis Cohen's client alert on the recent guidance

Disclaimer: This podcast is for informational and educational purposes only and does not constitute legal or investment advice. Views expressed by the guest are their own and do not necessarily reflect those of their employers. Listening to this podcast does not create an attorney-client relationship.