Law of Code #182 - Lewis Cohen explains new SEC & CFTC token guidance
Mar 30, 2026
Lewis Cohen, securities law expert and co-chair of Cahill Next’s digital assets practice, breaks down when crypto transactions cross into securities territory. He explains the SEC’s attachment and separation idea, risks for market participants and platforms, the mess around who counts as an issuer, and why disclosure regimes might be the practical fix. Short, sharp, and legally grounded insights on crypto regulation.
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Secondary Trades Create Third Party Risk
- The guidance treats many secondary market trades as potentially securities transactions, creating uncertainty for market-makers and other third parties.
- Cohen warns brokers, dealers, or exchanges could face unexpected registration or liability because case law on secondary transactions is thin.
Push For Practical Safe Harbors
- Pursue safe harbors and clear parameters to limit when token sales are treated as securities, but expect it's hard to craft rules that fit diverse crypto models.
- Cohen urges collaborative rulemaking between the bar and SEC while warning the carve-outs will be technically complex.
Who Counts As An Issuer Is Unclear
- "Issuer" in crypto is amorphous because deployment, foundations, labs, promoters and transient entities can all claim roles.
- Cohen notes issuer must imply an ongoing relationship, which often doesn't exist in token ecosystems.