The SEC just told us how to conduct crypto ODD

12/12/22 11:58 AM

The SEC Division of Corporation Finance last week published a letter which will be sent to many of the public companies listed in the US. Included in the letter are 9 risk areas which - while targeted at public issuers - equally provide a pretty straightforward roadmap as to how to conduct ODD on crypto managers and their funds. 

Put another way, ODD which has not considered these topics in the past - while applying an appropriate degree of professional skepticism - will need to be reperformed in the post FTX era. (Please click here to download our recent white paper on ODD lessons from, the FTX collapse).

These are the risks listed by the SEC:

  1. Describe any material risk to you, either direct or indirect, due to excessive redemptions, withdrawals, or a suspension of redemptions or withdrawals, of crypto assets. Identify any material concentrations of risk and quantify any material exposures.
  2. To the extent material, discuss any reputational harm you may face in light of the recent disruption in the crypto asset markets. For example, discuss how market conditions have affected how your business is perceived by customers, counterparties, and regulators, and whether there is a material impact on your operations or financial condition.
  3. We note that you are not authorized or permitted to offer your products and services to customers outside of the jurisdictions where you have obtained the required governmental licenses and authorizations.  Describe any material risks you face from unauthorized or impermissible customer access to your products and services outside of those jurisdictions. Describe any steps you take to restrict access of U.S. persons to your products and services and any related material risks.
  4. Describe any material risks to your business from the possibility of regulatory developments related to crypto assets and crypto asset markets. Identify material pending crypto legislation or regulation and describe any material effects it may have on your business, financial condition, and results of operations.
  5. Describe any material risks you face related to the assertion of jurisdiction by U.S. and foreign regulators and other government entities over crypto assets and crypto asset markets.
  6. Describe any material risks related to safeguarding your, your affiliates’, or your customers’ crypto assets. Describe any material risks to your business and financial condition if your policies and procedures surrounding the safeguarding of crypto assets, conflicts of interest, or comingling of assets are not effective.
  7. To the extent material, describe any gaps your board or management have identified with respect to risk management processes and policies in light of current crypto asset market conditions as well as any changes they have made to address those gaps.
  8. Describe any material financing, liquidity, or other risks you face related to the impact that the current crypto asset market disruption has had, directly or indirectly, on the value of the crypto assets you use as collateral or the value of your crypto assets used by others as collateral.
  9. To the extent material, describe any of the following risks due to disruptions in the crypto asset markets:
  • Risk from depreciation in your stock price.
  • Risk of loss of customer demand for your products and services.
  • Financing risk, including equity and debt financing.
  • Risk of increased losses or impairments in your investments or other assets.
  • Risks of legal proceedings and government investigations, pending or known to be threatened, in the United States or in other jurisdictions against you or your affiliates.
  • Risks from price declines or price volatility of crypto assets.
All excellent points.

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