SEC Adopts Rules to Require Registration of Certain Persons Engaging in Liquidity-Providing Activities as “Dealers” and “Government Securities Dealers”

Mayer Brown

On February 5, 2024, the U.S. Securities and Exchange Commission (“SEC”) adopted new rules – SEC Rules 3a5-4 and 3a44-2 (collectively, the “Final Rules”) – to further define the phrase “as part of a regular business” used in the statutory definitions of “dealer” and “government securities dealer” in Sections 3(a)(5) and 3(a)(44) of the Securities Exchange Act of 1934 (the “Exchange Act”), respectively. The Final Rules set forth two qualitative factors that subject market participants taking on significant liquidity-providing roles, which the SEC construes to be de facto market makers, to registration under the Exchange Act as dealers or government securities dealers. The Final Rules apply to the buying and selling of any “security” or “government security,” as such terms are defined in Sections 3(a)(10) and 3(a)(42) of the Exchange Act, respectively, including crypto assets that are securities or government securities. The Final Rules will become effective 60 days after their publication in the Federal Register. The compliance date for the Final Rules will be one year after their effective date.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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