“The bottom line is that this is an area that is just crying out for clarity and further guidance from the staff or the commission,” said Michael Liftik, a partner at the law firm Quinn Emanuel. “If you look at across the activity from the SEC, it is…mostly enforcement-driven, and so a lot of time is spent picking through the breadcrumbs of enforcement orders to try to figure out where the staff is.”
In response, Littman echoed an argument made by SEC Chairman Gary Gensler that digital assets are not fundamentally different from other financial instruments so as to make existing case law unable to guide potential issuers as to whether their tokens are securities under federal law.
‘Enforcement 40’ for 2020
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