Question 1

What is the Crypto Rating Council?

Accepted Answer

The Crypto Rating Council, LLC ("CRC") is a member-owned and operated organization whose purpose is to assess whether any given crypto asset, or whether the development, issuance, and use of such asset have characteristics that make it more or less likely to implicate federal securities laws. The CRC does not address the merits or sustainability of any digital asset for purchase, sale, or any other purposes, and ratings are not intended to be relied on as legal, investment, financial, or other advice by any person. The Council is not registered with the U.S. Securities and Exchange Commission or registered with or licensed by any other federal, state or other authority.

Question 2

Why Create the Crypto Rating Council?

Accepted Answer

Whether a crypto asset is a security—as opposed to a currency, a commodity, or something else—may trigger registration, licensing, and other operating obligations for financial services firms that offer digital asset services like exchange, investment management, and trading. Under federal law, this important question is generally answered by applying the four-factor Howey test, which requires painstaking “facts and circumstances” analysis which often leads to judgment calls, inconsistent results, and can lead to disagreement among legal experts (and government officials). The founding members formed the CRC to create a compliance tool which, in partnership with securities law experts, allows the members to have a consistent framework to review assets supported in the ordinary course of their respective businesses. The Council does not address state securities laws, which are distinct and sometimes may differ materially from U.S. federal securities laws.

Question 3

What is the Council’s Rating Framework?

Accepted Answer

At the core of the Council’s work is a points-based rating system centered around a set of factual questions. Working with legal and technical experts and members of the community, the CRC distilled a set of yes or no questions which are designed to plainly address each of the four, Howey test factors: (i) whether crypto purchasers invested money, (ii) in a “common enterprise”, (iii) with a reasonable expectation of profit, (iv) based on the efforts of others. The questions are tailored to assess the characteristics considered by the Council to most likely impact any given crypto asset’s treatment under the securities laws. These characteristics include the design of the digital asset, facts, and circumstances of the asset’s issuance, governance features, third-party contributions to the project, and use of the asset. The questions are also structured to allow for objective, repeatable, and fact-driven responses that can be applied consistently across different assets and across the same asset over time.

Question 4

What Does the Rating Mean?

Accepted Answer

Each question in the framework is assigned a points-based weighting to reflect its relative importance, the sum of which create scores for each Howey factor. Those scores are then scaled into a final rating between 1 and 5. A score of 5 results when an asset appears to have many characteristics that are consistent with the Howey-test factors. It is probably more likely, relative to lower-scored assets, to implicate the U.S. securities laws. A score of 1 results when an asset appears to have few characteristics that are consistent with the Howey-test factors. It is probably less likely, relative to higher-scored assets, to implicate the U.S. securities laws. Scores are scaled; a score of 4, for example, does not mean that four prongs of the Howey test are met. A score above the median asset rating does not mean there is a 50% or greater possibility of classification as a security. 
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The assessment is only intended to be an assessment by the Council at a specific point in time based on facts understood by the Council at that time, and accordingly does not reflect subsequent facts or changes to understanding of existing facts. The Council’s rating methodology has not been endorsed by the SEC or any other regulatory authority, and a digital asset could be deemed to be a security by the SEC or other authority regardless of the rating determined by the Counsel.
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‍The rating rendered by the framework is not a determination of the merits of a digital asset or its suitability for purchase, sale or any other purpose. The prices of digital assets can be highly volatile and the purchase and sale of digital assets can be highly risky and result in financial loss. Persons purchasing or otherwise transacting in digital assets should consult with their own legal, tax and financial advisors in considering whether to acquire or otherwise transact in digital assets.

Question 5

How Does the Council Use the Framework in Practice?

Accepted Answer

Members periodically select a set of assets for review. Outside counsel, with assistance from technical experts, then performs a comprehensive factual review of each asset. This review includes a study of the history of the asset, developer team materials including whitepapers, websites, and social media, asset issuance history, codebase contributions, functionality of the asset and related blockchain, and other factors. Counsel then generates a summary memo and applies the framework to these facts to produce a preliminary score for input by members. Members’ respective legal teams and technical experts then review, deliberate and vote to adopt or revise the score. Scores are only intended to be a tool for members and not for reliance by other parties. Members exercise their own discretion to decide whether to support or trade a particular asset according to their individual policies and procedures and other considerations in consultation with legal, technical and other advisors. No member is responsible for any other member’s subsequent decisions or operations.

Question 6

Does the Council Give Legal Advice?

Accepted Answer

No. The framework is the Council’s attempt to provide a consistent analysis which the members find useful but it is not legal advice and does not reflect the opinion of any member or outside counsel of whether any given asset is a security. We encourage continued discussion among operators, developers, and regulators about the application of securities laws to crypto assets, but the Council’s understanding of the facts could be wrong and our analysis may not accurately reflect the law. You should not rely on the score for any legal purpose, and should consult with your own legal and other advisors before taking actions with respect to a particular digital asset.

Question 7

Do Developer Teams, the SEC, or other Regulators Endorse the Rating for Any Asset?

Accepted Answer

No. None of the SEC, the CFTC or any other regulator have endorsed the Council’s methodology or ratings. The SEC is not involved in the Council’s work, although we have shared our methodology with the SEC and other interested regulators and government officials. We plan to keep an open dialogue with regulators, and are available to consider input on refinement of the methodology and ratings.

Question 8

Are Developer Teams involved in the Rating Process?

Accepted Answer

Developer teams are generally not involved in our process. In some cases, developer teams may provide information to the Council to assist in fact development, but this participation is optional and developers have no influence over the performance of the analysis and do not endorse the process or score in any way.

Question 9

Facts and Law Change. Does the Council Update the Framework and Scores?

Accepted Answer

Yes. Our goal is to maintain a compliance framework that is state-of-the-art and consistent with the latest developments in technology and law. Our framework is based on a thorough analysis of the U.S. securities law statutes, court cases, enforcement actions, and comprehensive guidance issued by the U.S. Securities & Exchange Commission. We will update our framework as frequently as necessary to accommodate changes in law or guidance to ensure its continuing value to members. Even if the law doesn’t change, pertinent facts about the asset can change. The score is only intended to reflect the Council’s understanding of developments as of the date adopted by the Council. The Council will establish a periodic review process to assess new facts for previously scored assets—like changes to third-party contributions, live network functionality, and public use—and will rescore and rescore asset as appropriate.

Question 10

I’m a Developer And I Disagree with a Score. How Can I Give Feedback?

Accepted Answer

As the nature of digital assets and related facts and circumstances quickly evolve, we welcome developer input when we score assets. If you provide the Council with information that leads the Council to conclude our analysis was based on erroneous or incomplete facts or suggest and updated score is otherwise appropriate, we will review our score in light of the new information and revise the score if appropriate. Please visit our contact page or get in touch with any Council member to connect with us. We do not guarantee the confidentiality of any third-party communications to the Council.

Question 11

Can I apply to have an asset reviewed by the Council?

Accepted Answer

No. The Council makes its own determination as to which assets to review based on member input, available budget and other factors. While issuers of digital assets are free to contact members of the Council or the Council directly to express an interest in having their asset reviewed, the Council does not accept applications for review.

Question 12

What’s Next?

Accepted Answer

We plan to add more members, review additional assets, and re-score previously-rated assets on a periodic basis. We may also develop similar analytical tools for non-U.S. jurisdictions. Watch our website for developments.

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