On Thursday, Wyoming’s Republican governor, Mark Gordon, signed into law the Decentralized Unincorporated Nonprofit Association Act, a landmark bill that establishes a framework for recognizing DAOs as legal entities.
Wyoming has long positioned itself as the friendliest state toward the crypto industry—not unlike Delaware’s attitude toward corporations—and the new law is the latest in a series of measures to attract blockchain firms to the Cowboy State. With support from a16z crypto, the legislation tackles one of the thorniest legal issues in the nascent sector: how to fit decentralized organizations into existing financial regulation.
In an exclusive interview with Fortune, state Sen. Chris Rothfuss, a Democrat and cochair of the Select Committee on Blockchain that sponsored the bill, said the measure reinforces Wyoming’s nation-leading approach to digital asset regulation as the federal government remains gridlocked.
“This DUNA legislation is just the most recent puzzle piece,” he said. “We wanted to make sure that we had the flexibility to figure out what the best practices and policies and use cases were in a legislature that was actually capable of being responsive and adaptive.”
The DAO problem
Decentralized autonomous organizations, or DAOs, are a unique structure born from the blockchain industry. Rather than deploying a traditional corporate structure, with a board of directors responsible for investors’ fiduciary interests, DAOs are composed of community members who vote on how to manage an organization, generally through holding governance tokens that are native to the group.
The concept may seem esoteric, but there have been high-profile instances in the past few years, including ConstitutionDAO, where people banded together in an attempt to buy one of the last remaining copies of the U.S. Constitution.
The novel structure has also created legal headaches for both crypto acolytes and regulators, most notably in an enforcement action by the Commodity Futures Trading Commission against Ooki DAO, which the agency charged with operating an illegal trading platform. In an unprecedented step, the CFTC held every token holder liable for the actions of the organization and served its members via a help chat box on the organization’s website.
“It is possible that DAOs are just the worst of all worlds: Their tokens are similar enough to corporate shares to be subject to securities laws, but different enough to create unlimited liability for their holders,” Bloomberg’s Matt Levine wrote at the time.
As Rothfuss told Fortune, Wyoming has a history of creating new rules around corporate structures, including becoming the first state to adopt the limited liability corporation, or LLC. Among its crypto initiatives, Wyoming also created a digital asset-focused banking charter called the Special Purpose Depository Institution, which took on national prominence after one charter holder, the Caitlin Long-led Custodia Bank, sued the Federal Reserve over being denied a master account.
Wyoming attempted to address DAO supervision previously with a 2021 law that created an LLC structure for the decentralized organizations. In an interview with Fortune, a16z crypto general counsel Miles Jennings explained that the framework created potential complications under securities laws, because the membership interests in LLCs—tokens, in this case—are generally considered securities. Furthermore, the Corporate Transparency Act, passed by Congress in 2021, required LLCs to report ownership—an impossibility for DAOs, some of which have hundreds of thousands of members scattered across the world. The 2021 legislation ultimately failed to attract DAOs to Wyoming.
DUNA
Instead of structuring DAOs as LLCs, the new law uses the model of unincorporated nonprofit associations, which means its purpose is not to generate profits for its owners—although it can still generate revenue and compensate DAO members.
Jennings explained why the new structure is necessary: It gives DAOs legal existence, it enables them to contract with third parties and appear in court, and it enables them to pay taxes and have limited liability from the actions of other members.
The structure would not prevent regulatory enforcement if DAOs break the law. Instead, it would allow the DAO to hire legal counsel and appear in court, and it would mean that every voting member of the organization wouldn’t necessarily be liable for the DAO’s actions—like how Enron shareholders weren’t held liable for fraud.
Jennings described DUNA as a “boon” for the government, as it would bring DAOs into the existing tax framework and generate revenue. The law attempts to circumvent the pesky question of whether crypto tokens should be considered securities, with DAOs having no directors, officers, or mission to maximize profits. Still, Jennings admitted that the structure may not escape the attention of the Securities and Exchange Commission, which has attempted to establish oversight over the vast majority of crypto assets.
The biggest challenge for Wyoming may be convincing existing DAOs—many of which reflect the “degen” spirit of rebellion endemic to the crypto industry—to adopt the new structure. Jennings said a16z crypto plans to work with portfolio companies on doing so and make it a condition for future investments.
“Some within the industry think that if you don’t subject yourself to the regulatory regime of a given jurisdiction that you’re somehow not subject to it,” Jennings told Fortune. “By doing that, you’re actually subjecting yourself to all jurisdictions.”
“If you want to provide for yourself all the legal protections that exist, for ordinary businesses, this is a much better way to achieving that,” he added.
