For the first time, the U.S. Securities and Exchange Commission (SEC) has targeted an offering of non-fungible tokens (NFTs), setting its sights on the entertainment business Impact Theory.
The SEC has charged Impact Theory for raising $30 million through unregistered NFTs, applying the Howey analysis to categorize them as securities.
The tokens were marketed as business investments, with the company promising potential profits if their ventures were successful. The SEC has ordered Impact Theory to pay over $6.1 million worth of fines.
However, not everyone at the SEC is on board with the enforcement action. Commissioners Hester Peirce and Mark Uyeda issued a dissent, questioning the appropriateness of applying the Howey analysis to the fledgling digital asset class and suggesting that the regulatory agency should have offered guidance on regulation before taking such a drastic step.
They acknowledged concerns about the type of hype that could lead people to invest heavily in NFTs without understanding their utility or potential profitability, but they also argued that these concerns alone did not justify the SEC's intervention. In their view, the promises made by Impact Theory were not sufficient to categorize the NFTs as investment contracts.
Impact Theory had already initiated repurchase programs, offering to buy back the NFTs for a total payout of $7.7 million worth of Ether. The dissenting commissioners pointed out that the typical remedy for a registration violation is a rescission offer, which Impact Theory had already executed. They questioned whether an enforcement action was warranted given these circumstances.
The case sets a significant precedent in the evolving landscape of NFTs and raises numerous questions about how these digital assets should be regulated.