Highlights:
- The SEC fined Flyfish Club $750K for selling unregistered NFT securities to U.S. investors.
- Commissioners Peirce and Uyeda disagreed, arguing the NFTs were utility tokens, not securities.
- The SEC’s crackdown has raised concerns about stifling innovation in the evolving NFT market.
The United States Securities and Exchange Commission (SEC) has fined Flyfish Club, LLC, a restaurant project, $750,000 for the unregistered sale of non-fungible tokens (NFTs). On September 16, a cease and desist order revealed that Flyfish Club sold 1,600 NFTs to U.S. investors between August 2021 and May 2022., generating $14.8 million.
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These NFTs were marketed as memberships providing exclusive access to the upcoming “Flyfish Club,” a restaurant and bar in New York City. The regulatory agency’s enforcement action claims that Flyfish’s NFTs are considered securities under federal law due to their potential for resale at higher values and the possibility of earning passive income through leasing.
Based on these findings, the regulatory agency concluded that Flyfish violated Sections 5(a) and 5(c) of the Securities Act of 1933 by not registering the NFTs as securities. Moreover, the order requires Flyfish to cease future violations, pay $750,000 in civil penalties, and destroy all NFTs in its possession within ten days.
Some thoughts on NFTs being on the enforcement menu at the SEC: https://t.co/jw2trhSIo3 Order is here: https://t.co/R5gQUblatD
— Hester Peirce (@HesterPeirce) September 16, 2024
SEC Commissioners Dissent on NFT Crackdown, Call for Clearer Guidelines
However, not all members of the U.S. SEC support the crackdown. Commissioners Mark T. Uyeda and Hester Peirce issued a joint statement dissenting from the SEC’s action, arguing that the NFTs in question were utility tokens, not securities. They said the Flyfish NFTs aimed to provide exclusive dining experiences rather than serve as speculative investment vehicles.
The commissioners also recommended that the regulatory agency offer clearer guidelines to enable creators and businesses to innovate with non-fungible tokens without fearing regulatory action. They highlighted that NFTs serve as a new tool for creators, such as chefs and artists, to monetize their talents and create unique experiences and that overly strict regulatory interpretations should not stifle this innovation.
Further, Peirce and Uyeda stated:
“Creative people should be able to experiment with NFTs without having to consult a high-priced tea-leaf reader — ahem, lawyer. The Commission can change its menu to include a healthy serving of guidance to give non-securities NFT creators the freedom to experiment.”
As part of the settlement, Flyfish Club, led by entrepreneur Gary Vaynerchuk, known for his rise during the 2021 NFT boom, will destroy all remaining NFTs and forgo future royalties from NFT sales. According to the restaurant’s website, the restaurant will open this month.
SEC Targets NFT Projects and Platforms
The SEC has pursued several NFT-related cases over the past year. Its first charges involved podcast studio Impact Theory, followed by a lawsuit against Stoner Cats 2 LLC for an unregistered NFT offering that raised $8 million from investors.
Moreover, the NFT marketplace OpenSea disclosed receiving a Wells Notice from the SEC, indicating that the agency is preparing to take enforcement action against the platform. The SEC’s stance has sparked debate over balancing regulation with innovation in the fast-changing NFT landscape.
OpenSea has received a Wells notice from the SEC threatening to sue us because they believe NFTs on our platform are securities.
We're shocked the SEC would make such a sweeping move against creators and artists. But we're ready to stand up and fight.
Cryptocurrencies have long…
— Devin Finzer (dfinzer.eth) (@dfinzer) August 28, 2024
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