SEC Examination Risk Alert Signals Focus on Digital Asset Securities

04 March 2021 Foley Funds Legal Focus Blog
Author(s): Thomas J. Krysa Peter D. Fetzer Stephen M. Meli Stuart E. Fross Margaret Gembala Nelson Brooke D. Clarkson

On February 26, 2021, the SEC’s Division of Examinations issued a Risk Alert signaling an exam focus this year on activities of investment advisers, broker-dealers, exchanges, and transfer agents related to Digital Asset Securities, defined as assets distributed and/or transferred using distributed ledger or blockchain technology.  This Risk Alert foreshadows an expected area of priority for new SEC Chair Gary Gensler, who as a professor at MIT has written and taught on blockchain and cryptocurrency issues.  For investment advisers, the Alert indicated an exam focus on compliance policies related to Digital Asset Securities in the areas of portfolio management, books and records requirements, the custody rule, risk disclosures, valuation issues, and registration requirements.  For broker-dealers, examinations will focus on the safekeeping of funds and operations, registration requirements, anti-money laundering (“AML”) programs, offerings, conflict of interest disclosures, and outside business activities.  For exchanges, examinations will focus on exchange registration issues and compliance with Regulation ATS.  Finally, for transfer agents, examinations will focus on compliance with rules related to the clearance and settlement of Digital Asset Securities transactions.   

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