As financial markets wrap up the year 2021 and launch into 2022 at warp speed, the “DeFi” world has a new star called the “DAO”.

Decentralized finance, short-handed as “DeFi”, refers to peer-to-peer finance enabled by Ethereum, Avalanche, Solana, Cardano and other Layer-1 blockchain protocols, as distinguished from centralized finance (“CeFi”) or traditional finance (“TradFi”), in which buyers and sellers, payment transmitters and receivers, rely upon trusted intermediaries such as banks, brokers, custodians and clearing firms. DeFi app users “self-custody” their assets in their wallets, where they are protected by their private keys. By eliminating the need for trusted intermediaries, DeFi apps dramatically increase the speed and lower the cost of financial transactions. Because open-source blockchain blocks are visible to all, DeFi also enhances the transparency of transactions and resulting asset and liability positions.

Although the proliferation of non-fungible tokens, or NFTs, may have gathered more headlines in 2021, crypto assets have become a legitimate, mainstream and extraordinarily profitable asset class since they were invented a mere 11 years ago.  The Ethereum blockchain and its digitally native token, Ether, was the wellspring for DeFi because Ether could be used as “gas” to run Layer-2 apps built to run on top of Ethereum. Since then, Avalanche, Solana and Cardano, among other proof-of-stake protocols, have launched on mainnet, providing the gas and the foundation for breathtaking app development which is limited only by the creativity and industry of development teams.

Avalanche and its digitally native token AVAX exemplify this phenomenon. Launched on mainnet a little more than a year ago, Avalanche already hosts more than 50 fully-launched Layer-2 apps. The AVAX token is secured by more than 1,000 validators. Recently, the Avalanche Foundation raised $230 million in a private sale of AVAX tokens for the purpose of supporting DeFi projects and other enhancements of the fully functional Avalanche ecosystem. Coinbase, which is a CeFi institution offering custodial services to its customers, facilitates purchases and sales of the Avalanche, Solana, Cardano and other Layer-1 blockchain tokens, as well as the native tokens of DeFi exchanges such as Uniswap, Sushiswap, Maker and Curve. So formidable is DeFi in its potential to dominate the industry that Coinbase, when it went public in 2021, cited competition from DeFi as one of the company’s primary risk factors.

If DeFi were “a company,” like Coinbase, the market capitalization of AVAX would be shareholder wealth. But DeFi is code, not a company. Uniswap is a DeFi exchange that processed $52 billion in trading volume in September 2021 without the help of a single employee. Small wonder that CeFi and TradFi exchanges are concerned.

DeFi apps require “DAOs,” or Decentralized Autonomous Organizations, to operate. DAOs manage DeFi apps through the individual decisions made by decentralized validator nodes who own or possess tokens sufficient in amount to approve blocks. Unlike joint stock companies, corporations, limited partnerships and limited liability companies, however, DAOs have no code (although, ironically, they are creatures of code). In other words, there is no “Model DAO Act” the way there is a “Model Business Corporation Act.” DAOs are “teal organizations” within the business organization scheme theorized by Frederic Lalou in his 2014 book, “Reinventing Organizations.” They are fundamentally unprecedented in law.

Just as NFTs have been a game changer for creators, artists and athletes, our legal system will need to evolve to account for the creation of the DAOs that govern NFTs and other crypto assets. (NFTs are a species of crypto asset.) Adapting our legal system to account for DAOs represents the next wave of possibility for more numerous and extensive community efforts.

A DAO is fundamentally communitarian in orientation. The group of individuals is typically bound by a charter or bylaws encoded on the blockchain, subject to amendments if, as and when approved by a majority (or some other portion) of the validator nodes. Some DAOs are governed less formally than that.

The vast majority of Blockchain networks and smart contract-based apps are organized as DAOs. Blockchain networks can use a variety of validation mechanisms.  Smart contract apps have governance protocols built into the code.  These governance protocols are hard-wired into the smart contracts like the rails for payments to occur, fully automated, and at scale.

In a DAO, there is no centralized authority — no CEO, no CFO, no Board of Directors, nor are there stockholders to obey or serve. Instead, community members submit proposals to the group, and each node can vote on each proposal. Those proposals supported by the majority (or other prescribed portion) of the nodes are adopted and enforced by the rules coded into the smart contract.  Smart contracts are therefore the foundation of a DAO, laying out the rules and executing the agreed-upon decisions.

There are numerous benefits to a DAO, including the fact that they are autonomous, do not require leadership, provide objective clarity and predictability, as everything is governed by the smart contract. And again, any changes to this must be voted on by the group, which rarely occurs in practice.  DAOs also are very transparent, with everything documented and allowing auditing of voting, proposals and even the code. DAO participants have an incentive to participate in the community so as to exert some influence over decisions that will govern the success of the project. In doing so, however, no node participating as part of a decentralized community would be relying upon the managerial or entrepreneurial efforts of others in the SEC v. Howey sense of that expression. Neither would other nodes be relying upon the subject node. Rather, all would be relying upon each other, with no one and no organized group determining the outcome, assuming (as noted) that the network is decentralized. Voting participants in DAOs do need to own or possess voting nodes, if not tokens.

As with NFTs, there are limitless possibilities for DAOs.  We are seeing a rise in DAOs designed to make significant purchases and to collect NFTs and other assets. For example, PleasrDAO, organized over Twitter, recently purchased the only copy of the Wu-Tang Clan’s album “Once Upon a Time in Shaolin” for $4 million. This same group has also amassed a portfolio of rare collectibles and assets such as the original “Doge” meme NFT.

In addition to DAOs that are created as collective investment groups, there are DAOs designed to support social and community groups, as well as those that are established to manage open-source blockchain projects.

As is true with any emerging technology, there is currently not much regulation or oversight surrounding DAOs. This lack of regulation does make a DAO much simpler to start than a more traditional business model. But as they continue to gain in popularity, there will need to be more law written about them.

The State of Wyoming, which was first to codify the rules for limited liability companies, recently codified rules for DAOs domiciled in that state. So a DAO can be organized as such under the laws of the State of Wyoming. No other state enables this yet.

Compare the explosion in digital assets to the creation of securities markets a century ago.  After the first world war concluded in 1917, the modern securities markets began to blossom.  Investors pooled their money into sophisticated entities called partnerships, trusts and corporations, and Wall Street underwrote offerings of instruments called securities, some representing equity ownership, others representing a principal amount of debt plus interest.  Through the “roaring ‘20s,” securities markets exploded in popularity. Exuberance became irrational. When Joe Kennedy’s shoeshine boy told him that he had bought stocks on margin, Kennedy took that as a “sell” signal and sold his vast portfolio of stocks, reinvesting in real estate: he bought the Chicago Merchandise Mart and was later appointed by FDR to chair the SEC.  When the stock market crashed, fingers were pointed.  Eventually, a comprehensive legislative and regulatory scheme was built, woven between federal and state legislation and regulatory bodies.  Almost a hundred years later, securities markets have become the backbone of our financial system, and investors and market participants have built upon the certainty of well-designed architecture to create financial stability and enable growth.

But the legislative paradigm designed in the 1930s was not created with digital assets in mind. The world was all-analog then. The currently disconnected and opaque regulatory environment surrounding digital assets presents a challenge to sustained growth in DeFi markets.  Without “crypto legislation,” government agencies have filled the void, making their own determinations, and they are not well suited to do so. Just before Thanksgiving, the federal banking agencies released a report to the effect that they had been “sprinting” to catch up on blockchain developments, that they are concerned by what they see, and that next year they will start writing rules. Plainly, technological development has outpaced Washington again.

Whether crypto assets should be characterized as securities, commodities, money or simply as property is not clear in present day America.  Will entrepreneurs continue to create digital assets and will investors buy them if their legal status is in doubt?  The SEC mantra is “come talk to us,” but the crypto asset projects actually approved by the SEC are precious few in number, and SEC approvals are not timely. We have clients that have run out of runway while waiting for SEC approvals. In decentralization as in desegregation, justice delayed is justice denied. The recent experience of Coinbase in attempting to clear its “Lend” service through the SEC, only to be threatened with an SEC enforcement action (but no explanation), has caused other industry participants to question the utility of approaching officials whose doors might be open for polite conversation but whose minds seem to be closed.

Similarly, DAOs are a path-breaking form of business “organization” that are not well understood. They are not corporations. Should they nevertheless file and pay taxes, open bank accounts or sign legal agreements? If so, then who would have the power or duty to do that for a decentralized autonomous organization whose very existence decries the need for officers, directors and shareholders? The globally significant Financial Action Task Force, in its recent guidance on “virtual assets and virtual asset service providers,” called on governments to demand accountability from “creators, owners and operators,” as it put it, “who maintain control or sufficient influence” in DeFi arrangements, “even if those arrangements seem decentralized.” Some observers have characterized the FATFs guidance as an attempted “kill shot” targeting the heart of DeFi.

This, too, we know: SEC Chair Gensler has his eye on DeFi. We know that because he has said so, repeatedly. Trading and lending platforms, stablecoins and DeFi are the priorities that he mentions. SEC FinHUB released a “Framework” for crypto analysis that includes more than 30 factors, none of which is controlling. That framework is unworkable because it is too complex and uncertain of application. Chair Gensler, however, apparently applies what he calls the “duck” test: If it looks like a security, it is one. With respect to Mr. Gensler, that simple approach is no more useful than the late Justice Potter Stewart’s definition of obscenity: “I know it when I see it.” Less subjectivity and greater predictability in application are essential so development teams and exchange operators can plan to conduct business within legal boundaries. What we need are a few workable principles or standards (emphasis on “few” and “workable”) that define the decentralization that is at the core of legitimate DeFi and the consumer use of tokens that are not investment contracts. We also need the SEC to adhere to Howey analysis, which it has told us to follow slavishly, and not try to move the goalposts by misapplying the Reves “note” case when it senses that Howey won’t get it the result it craves.

Although futuristic DAOs are a decentralized break from the centralized past and present of business organization, the SEC has seen them before. Indeed it was the “DAO Report” issued in 2017 that began SEC intervention in the crypto asset industry. The DAO criticized in the DAO Report was unlike the DAOs seen today for a variety of reasons, including these: that DAO was a for-profit business that promised a return on investment, similar to a dividend stream, to token holders; and the token holders didn’t control the DAO. “Curators” controlled it, by vetting and whitelisting projects to be developed for profit. DAO participants necessarily relied on the original development team and the “Curators” to build functionality into the network. That sort of reliance on the managerial or entrepreneurial efforts of others is absent in a latter-day DAO whose participants can avail themselves of a fully functional network without reliance on the developers and without delay. It is earnestly to be hoped that the SEC will recognize these critical differences.

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Louis Lehot is an emerging growth company, venture capital, and M&A lawyer at Foley & Lardner in Silicon Valley.  Louis spends his time providing entrepreneurs, innovative companies, and investors with practical and commercial legal strategies and solutions at all stages of growth, from the garage to global.

Patrick Daugherty is Louis’ partner in Chicago. A corporate securities lawyer by training, he spent 35 years practicing the law of money (IPOs, ETFs, M&A, SEC reporting and governance). While he still does that, 5 years ago he went down the rabbit hole of crypto assets and he now devotes himself to the law of the future of money.