Keyword: Securities Exchange Commission (SEC)

The SEC’s Second No-Action Relief for Digital Tokens: Meaningful Relief or a Wolf in Sheep’s Clothing?

Pocketful of Quarters, Inc. (PoQ) is the second-ever recipient of no-action relief from the Division of Corporation Finance of the Securities and Exchange Commission for the issuance of “Quarters.” Quarters are a digital arcade token that is usable, like its conventional physical counterparts, across participating games and platforms. This no-action relief evidences a more thoughtful and sophisticated approach to the regulation of digital tokens and, in that respect, is welcome news to an industry that has been adrift since SEC Chairman Clayton’s statement in December 2017 that “[b]y and large, the structures of initial coin offerings that [he has] seen promoted involve the offer and sale of securities.” This no-action relief, though arguably unnecessary because Quarters are clearly not securities, confirms that certain classes of tokens are not subject to the requirements of the federal securities laws. Moreover, the conditions and restrictions imposed by the no-action letter on the issuance and use of Quarters are so onerous that the relief granted, while reaffirming, is not groundbreaking.

In the no-action relief, the Chief Legal Advisor to FinHub indicated that, subject to conditions, the Division would not recommend enforcement action to the Commission if PoQ offers and sells Quarters without registering the tokens as securities under Section 5 of the Securities Act and Section 12(g) of the Exchange Act. Some of the more significant conditions are:

  • The Quarters will be immediately usable for their intended purposes (gaming) at the time they are sold;
  • PoQ will restrict the transfer of Quarters through technological and contractual provisions governing the Quarters and the Quarters Platform that restrict the transfer of Quarters to PoQ or to wallets on the Quarters Platform;
  • Gamers will only be able to transfer Quarters to addresses of Developers with Approved Accounts or to PoQ in connection with participation in e-sports tournaments;
  • Only Developers and Influencers with Approved Accounts will be capable of exchanging Quarters for ETH at pre-determined exchange rates by transferring their Quarters to the Quarters Smart Contract;
  • Quarters will be made continuously available to gamers in unlimited quantities at a fixed price;
  • PoQ will market and sell Quarters to gamers solely for consumptive use as a means of accessing and interacting with Participating Games.

Considered as a whole, these conditions are so restrictive and duplicative that they raise doubt as to the necessity of the relief. For example, since Quarters will be made continuously available in unlimited quantities at a fixed price, no reasonable purchaser can expect the price of Quarters to increase and therefore cannot expect to profit from the purchase of Quarters. Accordingly, the transfer and secondary market trading restrictions are superfluous, and by highlighting them as a condition of the relief, CorpFin is effectively imposing conditions on a non-security.

Commissioner Hester Pierce raised a similar concern regarding the staff’s issuance of the first token no-action letter to TurnKey Jet, a charter jet company that sought to tokenize gift cards that could be used to charter its jet services. She stated that the offering of Turnkey tokens is so “clearly not an offer of securities that I worry the staff’s issuance of a digital token no-action letter . . . may in fact have the effect of broadening the perceived reach of our securities laws.” She continued by stating that the Turnkey no-action letter “effectively imposed conditions on a non-security.” Nevertheless, the Quarter’s no-action relief should be touted because it reestablishes the possibility of issuing a digital token that is not a security.

There are three additional aspects of PoQ’s letter requesting no-action relief that merit special attention: (i) the two-tiered token approach used by PoQ; (ii) the built-in token economics managed by a smart contract; and (iii) the condition that KYC/AML compliance reviews must be made at account initiation and on an ongoing basis.

First, Quarters are the second class of tokens that PoQ will issue, but the only one for which it sought no-action relief. PoQ conceded that the first class of tokens PoQ issued, “Q2 Tokens,” are securities, which were sold to investors through an exempt offering to raise funds to build the Quarters platform. The holders of the Q2 Tokens will benefit from the sale of Quarters by receiving, ratably, 15% of the funds collected from the sale of Quarters. This, or a similar, structure could prove beneficial to other investors that purchased tokens through an exempt offering and are now waiting for a return on their investment.

Next, the no-action relief implicitly approves the token economics of the PoQ network. According to PoQ’s letter requesting no-action relief, a portion of the funds received from the sale of Quarters will be used to compensate developers, influencers and Q2 Token holders in ETH. The funds distribution process will be managed by a smart contract. If Quarters are purchased with fiat currency, PoQ will transfer an equivalent amount of ETH to the Quarters Smart Contract upon such purchases for the purposes of such compensation.

Last, the no-action request raises, but leaves unanswered, a question pertinent to all token issuers: whether PoQ or any participant on the Quarters Platform must register with FinCEN as a money services business. Although this question is left unanswered, it appears that PoQ has built in some processes that would be required if it were a registered MSB. For example, a condition of the no-action relief states that: “to create an Approved Account, Developers and Influencers will be subject to KYC/AML checks at account initiation as well as on an ongoing basis.” In addition, the no-action request explains that purchases of Quarters through the PoQ Website “will occur via a licensed payment processor.” Similarly, purchases made through the Apple App store and Google Play store will occur via the standard payment processing solutions generally applicable to purchases made through those platforms; it is possible that this system was put in place to take advantage of one of the money transmitter exemptions such as the payment processor exemption. For the time being, however, it appears that PoQ has not registered with FinCEN; PoQ does not appear as a registered entity on FinCEN’s MSB Registrant database.

Though restrictive in its terms, the Quarters no-action relief demonstrates the SEC’s willingness to engage with token issuers and permit use of cryptocurrency outside of the SEC’s regulation, although the agency does not appear ready to give the concept free reign.

Despite Alleged Fraud, Judge Denies SEC’s Preliminary Injunction Request Based on Howey

Despite evidence of egregious fraud in the marketing of tokens, a judge in the U.S. District Court for the Southern District of California recently held the line against the SEC and denied its request for a preliminary injunction. In doing so, the court reaffirmed that in order for an injunction to be issued, the SEC must make a compelling showing that the tokens qualify as securities under the Howey test.

In Securities and Exchange Commission v. Blockvest, LLC et al., Judge Curiel of the U.S. District Court for the Southern District of California ruled on November 27, 2018, on a request by the SEC for a preliminary injunction against Blockvest, LLC and its principal Reginald Ringgold. The SEC’s request for a preliminary injunction came six weeks after the court granted a temporary restraining order in the SEC’s favor.

To obtain a preliminary injunction, the SEC bore the burden of showing that Blockvest and Ringgold committed a prima facie case of a securities law violation, and that such violation would likely repeat.  Specifically, the SEC alleged that Blockvest and Ringgold had engaged in an unregistered securities offering when selling proprietary BLV tokens to 32 individuals. The SEC argued that under the Howey test, these tokens qualified as securities because Blockvest and Ringgold engaged in a marketing campaign to induce purchasers to believe that, based on the efforts of Ringgold and Blockvest’s employees, the tokens would appreciate in value. Blockvest’s and Ringgold’s wrong would allegedly repeat because Ringgold demonstrated disregard for the SEC’s enforcement efforts in the days immediately after the initial delivery of its complaint.

Compounding the SEC’s case was the allegedly egregious fraud perpetrated by the Defendants. Ringgold represented that his offering was endorsed by the SEC, CFTC, and Deloitte Touche, as well as a fictional regulatory agency called the “Bitcoin Exchange Commission” that had the same address as the SEC and a seal modelled upon the seal of the SEC.

Despite the strong allegations of fraud, Judge Curiel denied the preliminary injunction because he gave credence to the Defendants’ rebuttals, and because the SEC had failed to make a compelling case. For instance, the court considered Ringgold’s assertion that the alleged 32 token purchasers were simply testers who had no expectation of profit; indeed, the pre-sale program through which the purchasers obtained the tokens had not yet even been cleared by the company’s compliance officer and the website where the purchases allegedly occurred was not operational.

All told, the court found that the SEC could not show that under the Howey test, any purchase based on an expectation of profit had actually occurred.  Likewise, the court concluded that the SEC could not show a reasonable likelihood of repetition of the wrong because no wrong had occurred in the first place, and Ringgold demonstrated intent to comply with securities laws going forward.

Dragged to the U.S. Courts (Part 1): Jurisdiction and the Location of Blockchain Nodes

Following the 2017 ICO boom and the more recent declines in cryptocurrency prices, blockchain-related litigation has substantially increased. U.S. courts have seen most of that action: American regulatory agencies have been more aggressive than their foreign counterparts (the SEC alone has over 200 open investigations), and private parties regularly bring individual suits and class actions. Altogether, close to 100 cases have been filed.

In two recent cases, the courts—for the first time—ruled on jurisdictional questions related to foreign companies by considering the technical aspects of blockchain technology. The opinions in In Re Tezos Securities Litigation and Alibaba Group v. Alibabacoin Foundation illustrate the following three points:

  1. The physical location of the verifying nodes can affect the court’s jurisdictional analysis.
  2. On personal jurisdiction, existing case law related to foreign online businesses serves as useful guidance for blockchain companies seeking to avoid U.S. litigation.
  3. Strategic dispute resolution and forum selection clauses can save the day.

Considering the importance of these issues for avoiding U.S. litigation and the space required to provide enough legal background to meaningfully discuss them, each issue will be addressed in a separate On the Chain post. Today we will address the first point: location of the nodes (the individual devices part of the larger data structure maintaining a copy of the blockchain and, in some cases, processing transactions).

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The physical location of the verifying nodes can affect the court’s jurisdictional analysis

When a foreign defendant is sued in a U.S. court, the court must determine that the U.S. laws in question can be fairly applied and the court has personal jurisdiction over the foreign party. While well-developed legal principles continue to govern the analysis, when a party is a company that uses blockchain and distributed ledger technologies, its reliance on multiple nodes that are physically located across the world raises unique jurisdictional questions. The following two cases tackle this issue.

In re Tezos Securities Litigation, No. 17-CV-06779-RS (N.D. Cal. Aug. 7, 2018)

In In re Tezos, Judge Seeborg addressed whether U.S. securities laws apply extraterritorially to a foreign company that sold tokens to U.S. residents in an ICO. As the readers are probably aware, the Tezos ICO was one of the largest to date, raising over $230 million in July 2017. Tezos Foundation, a Swiss defendant, argued that the sale of the security was not a “domestic transaction” and therefore the Exchange Act did not apply. The Court then posed the question, “where does an unregistered security, purchased on the internet, and recorded ‘on the blockchain,’ actually take place?”

Although the Contribution Terms of the Tezos ICO stated that Alderney (an English Channel Island) was the “legal site” of the transactions and the place where the “contribution software” resided, the Court held that the transaction occurred in the U.S. for the following reasons: (1) the plaintiff participated in the ICO from the U.S. (paying in Ether), (2) payment was made through interactive website that was hosted on an Arizona server, (3) the website was primarily run by an American co-defendant located in California, and (4) plaintiff’s contribution of Ether to the ICO “became irrevocable only after it was validated by a network of global ‘nodes’ clustered more densely in the United States than in any other country.”

Alibaba Group Holdings Limited v. Alibabacoin Foundation, No. 18-CV-2897 (S.D.N.Y. Oct. 22, 2018)

But not all judges give this much weight to the location of the nodes. In Alibaba v. Alibabacoin, Judge Oetken also addressed questions of jurisdiction and the location of blockchain nodes. In Alibabacoin, a trademark case, the Dubai- and Belarus-based defendant (Alibabacoin) argued that the Court lacked personal jurisdiction over it because its ICO sales did not occur in the U.S., since the transactions “consist of ledger entries made in Minsk, Belarus, following observation of changes in ‘blockchain data’ outside the United States.”

In asserting U.S. jurisdiction, Judge Oetken did not buy this argument. The Court held that the place where the transaction is put on the ledger is not relevant, comparing this situation to an everyday online purchase: “it would constrain common usage to say that the transaction occurs at the potentially remote location of the servers that process the buyer’s banking activities and not at location where the buyer clicks the button that commits her to the terms of sale.” The Court concluded that the plaintiff had demonstrated with reasonable probability that personal jurisdiction over Alibabacoin existed, based on other factors, which will be addressed in the next post.

In the future, the courts are likely to continue to focus on blockchain data structure

In Re Tezos appears to be the first time the courts have considered the location of the nodes to be relevant for jurisdictional analysis. But the cases also show that the courts are only beginning to wrestle with this issue.  Jurisdictional analysis will always depend on individual facts and the claims asserted. For example, when focusing only on the fourth factor of Judge Seeborg’s analysis (the location of the nodes), all projects using ERC-20 tokens, which depend on the same cluster of Ethereum nodes, could be considered to operate to some extent in the U.S. Furthermore, the importance of the nodes in jurisdictional analyses is likely to rise because the cases currently in courts are mostly ICO-related. That is, most of the ongoing litigation does not stem from the operation of the blockchain technology but is related to fraud, trademark disputes, and failures to register with various regulatory agencies.

Soon when more blockchain projects become operational and disputes arise in relation to such issues as on-chain transactions, hacking, security failures, and disputes over the governing of the networks, the importance of the data structure of these networks will increase. As a result, the influence of nodes as a factor in the courts’ analyses is also expected to increase, and many foreign blockchain companies that are avoiding the U.S. may, nevertheless, be dragged to U.S. courts.

As will be discussed in the upcoming posts, there are steps a company can take to avoid litigating in U.S. courts, including the set-up of its operations, drafting of its contracts with customers and partners, and litigation strategies pursued in court.

The NFA Enhances Reporting Requirements for Intermediaries Who Trade Virtual Currencies and Related Derivatives

Derivatives regulations have continued to evolve with the explosive growth of cryptocurrency in recent years. One of these earlier shifts transpired in late 2017, when the National Futures Association (NFA) issued three Notices to Members expanding the notifications and reporting requirements for financial derivatives intermediaries, citing similar actions by the CFTC along with the volatility in the underlying virtual currency markets.

Learn more about these regulatory shifts as well as perspectives on other derivatives regulators in this overview by our Securities Litigation team.