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The legal and fundraising implications of crypto tokens – TechCrunch


Editor’s note: Andreessen Horowitz’s Crypto Startup School brought together 45 participants from around the U.S. and overseas in a six-week course to learn how to build crypto companies. Andreessen Horowitz partnered with TechCrunch to release the online version of the course. 

The final week of a16z’s Crypto Startup School kicks off with former Coinbase Chief Legal Officer Brian Brooks discussing “Token Securities Frameworks and Launching a Network.” Brooks starts off calling crypto the “most perfect intersection of tech and finance,” but he cautions that crypto builders must navigate traditional financial-services regulatory structures.

This takes on special importance because tokens, the native assets of crypto networks, can be deemed securities by regulators, making them illegal to list on exchanges and subject to disclosures and other legal requirements.

Brooks explains the four-part Howey test, the Supreme Court ruling that has come to define when a given transaction is a securities transaction. Because crypto is still relatively new, however, the path to legality is still developing.

In the meantime, the crypto industry has created the Crypto Rating Council, a new tool to objectively rate tokens and gauge their risk of being deemed securities. Broadly, the tokens that carry the most risk of being labeled securities are those issued before a crypto network is fully decentralized, and while the actions of the management team remain critical to a network’s success. (Bitcoin, for example, is not a security, because it is completely decentralized and there is no core management team.)

Brooks introduces some promising new regulatory paths for crypto including membership models — similar to cooperatives or mutuals — in which token holders agree to only sell the token to other members of the network, avoiding a secondary sales market and thus steering clear of securities issues. While this model hasn’t been tested with the SEC, it has a long track record in other industries and bears further study.

In the final video of the program, former a16z partner and Mediachain co-founder Jesse Walden discusses “Fundraising and Deal Structure” for crypto startups. During early product development, crypto startups can raise traditional venture capital through equity, which allows for the most alignment between founders and investors.

Then, unlike a traditional startup, a crypto startup can invite its user base to participate in ownership and operation via the disbursement of tokens, once the core founding team has found product-market fit and established a viable network. This aligns incentives among the network, its users, the core team, and venture investors. Issuing tokens dilutes the stakes of the core team and early investors, but this is a desirable outcome because incentivizing more participants increases the chances that a network will grow. This leads to a larger pie overall for investors to share.

Walden also discusses Network Monetary Policy, citing Bitcoin, with its guaranteed limit of 21 million tokens, as having a fixed, deflationary supply policy. Other networks may be inflationary, with no ceiling on token amount, thereby perpetually diluting founders and early investors.

A perpetually dilutive system can nonetheless be productive for token holders due to staking, or the process of holders contributing to the operation of the network, which pays off in newly minted tokens for stakers and the retention of their ownership stakes.

See the videos from all six weeks of Crypto Startup School.



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