Last week it was reported that OpenSea, the world’s leading NFT marketplace, received a Wells notice from the US Securities and Exchange Commission (SEC), leading to lots of noise in the crypto space.
What is a Wells Notice?
The name of this type of notice comes from the Wells Committee, a legal advisory group created by the SEC in 1972 to review the agency’s enforcement practices, named after the SEC general counsel at that time, John A. Wells.
A Wells notice is given to a person or company following a completed investigation. It is a formal notice used to inform the subject that infractions have been discovered by the SEC, giving the investigated company or person an opportunity to publicly address and respond to the investigation prior to any rulings that might follow.
While the SEC neither confirmed nor denied any such regulatory investigation of OpenSea, in the NFT platform’s August 28th response, it stated that the notice “indicates that the SEC is considering bringing a lawsuit against OpenSea.”
OpenSea’s Position
OpenSea has not wavered in its position that NFTs on its platform should not be regulated as securities. Openly taking a stand for the rights of creators, artists and innovators who use the OpenSea platform, CEO Devin Finzer has pledged $5M (in addition to its own defense) to assist with legal fees for any creators or developers who have also received a Wells notice related to their NFT activity.
“NFTs are fundamentally creative goods: art, collectibles, video game items, domain names, event tickets, and more. We should not regulate digital art in the same way we regulate collateralized debt obligations.”
“We hope that the SEC will reconsider its stance and approach this issue with the open-mindedness it deserves.” –Devin Finzer, OpenSea CEO
Ongoing Debate
The question of whether regulatory agencies would consider treating non-fungible tokens as securities has been looming over the web3 space for the last few years.
While the debate has attracted the attention of the wider crypto world and concern from NFT collectors, the consequences of classifying NFTs as securities under US law would fall primarily on the creators and sellers of NFTs.
The SEC’s mission is to protect investors by maintaining fair, orderly and efficient markets. If NFTs were considered securities, then those who purchased them would be considered “investors” – The SEC would then be obligated to protect them.
Previous Enforcement Actions
While this is the first Wells notice from the SEC to target an NFT marketplace, several exchange platforms have received Wells notices, including Coinbase, Kraken, Robinhood, and decentralized exchange protocol Uniswap.
The question of whether or not certain types of digital goods will be regulated as securities has been approaching for some time, and veterans of the space have seen it coming.
Looking Ahead
Like regulation of cryptocurrency, regulation of non-fungible tokens on some level is inevitable. The majority of web3 innovators welcome such regulation with openness and compliance, because it allows the clarity needed to create and effectively execute projects.
At Gala, we stand with OpenSea that NFTs are not securities and their owners are not investors. We are however fully committed to regulatory compliance as these questions are settled over the coming months and years.
Ultimately, coming regulations should be seen as a sign of web3 adoption and we look forward to a world where such issues are settled, where we can fully focus on the empowerment and progress made possible by blockchain technology.
SOURCES
CoinDesk – “OpenSea Gets ‘Wells Notice’ from SEC, Which Calls NFTs Sold on Platform ‘Securities’”
OpenSea – “Take a Stand for a Better Internet”
CNBC – OpenSea Recieves Wells notice from SEC, regulator says NFTs are Securities
CoinTelegraph – “NFTs can be Securities but SEC Wells Notice to OpenSea ‘Not Productive” -Lawyer”
