SEC staff says network upgrades generally fall outside Howey test management efforts

  • SEC Corporation Finance staff issued FAQ guidance on functional crypto networks.
  • Functional-network maintenance and upgrades generally do not constitute essential managerial efforts.
  • SEC said the FAQ reflects staff views and carries no legal force.

The SEC Division of Corporation Finance said maintenance, upgrades and feature enhancements for functional crypto networks generally do not constitute "essential managerial efforts" under the Howey test, the framework used to assess investment contracts. The FAQ also says funding or sponsoring development for operational systems typically does not meet the related securities-law elements. Staking receipt tokens that show ownership without changing rights may be treated as digital instruments or commodities when issued by protocol-based liquid staking providers. Buybacks of non-security assets on functional networks generally fall outside the same standard, except when a network is pre-functional and returns are promoted to holders. The SEC stressed that the FAQ reflects staff views only and has no legal force.

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