The Commission’s Order[1] in this matter denies the Division of Enforcement’s motion to dismiss proceedings pursuant to Section 12(j) of the Securities Exchange Act of 1934 against American CryptoFed DAO LLC. Today’s Order announces for the first time that, contrary to prior Division of Corporation Finance staff guidance, a company must have the Commission’s approval to withdraw a filed, but not yet effective registration statement if there is a related Section 12(j) proceeding pending.
If the Commission wants to change its staff’s longstanding guidance, it should consider fully the implications of what it is doing and explain why the change is needed. A procedural order resolving a motion in an adjudication proceeding is poor means to that end and is an example of the Commission regulating companies through the enforcement process.
Our full dissent can be found at https://www.sec.gov/litigation/opinions/2023/34-97659.pdf#page=7.
