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Bridging the Week by Gary DeWaal: March 19 to 23 and March 26, 2018 (Howey; ICOs; Virtual Currencies; Actual Delivery)

The Department of Justice and the Securities and Exchange Commission opposed a motion to dismiss filed by a defendant named in a criminal indictment, charging him with offering and selling two types of digital tokens issued in initial coin offerings that the DoJ had alleged were securities without required registration. The defendant had argued that the digital tokens were not securities because they were currencies – albeit cryptocurrencies –, and in any case, were not investment contracts, as charged, under applicable law. Separately, over 95 comments were submitted in response to proposed guidance by the Commodity Futures Trading Commission as to what constitutes actual delivery of a virtual currency to a retail client in a leveraged or financed transaction. As a result, the following matters are covered in this week’s edition of Bridging the Week:

  • Department of Justice Argues Against Motion to Dismiss Indictment of ICO Sponsor Claiming That Relevant Digital Tokens Are Securities;

  • Commentators Argue CFTC Proposed Actual Delivery Guidance for Virtual Currencies Requires Refinement; and more.

Article Version:

Briefly:

  • Department of Justice Argues Against Motion to Dismiss Indictment of ICO Sponsor Claiming That Relevant Digital Tokens Are Securities: The Department of Justice opposed the February 27 motion of Maksim Zaslavskiy to dismiss the criminal indictment that had been filed against him in November 2017, charging that he engaged in illegal unregistered securities offerings and securities fraud in connection with the initial coin offerings of two digital tokens (REcoin and DRC) organized by two of his companies, REcoin Group Foundation, LLC and DRC World, Inc. The complaint was filed in a federal court in Brooklyn, New York. The Securities and Exchange Commission supported the DoJ’s opposition motion.

Among other things, Mr. Zaslavskiy claimed in his motion that the digital tokens he tried to create were not securities but cryptocurrencies, and that all currencies, fiat and otherwise, are not securities under applicable law. (Click here for background on Mr. Zaslavskiy’s motion in the article “Federal Court, Treasury and SEC Provide Further Guidance on Cryptocurrencies; Subject of Criminal Complaint for ICO Asks Court to Dismiss Prosecution Claiming Cryptocurrencies Are Not Securities” in the March 11, 2018 edition of Bridging the Week.)

The DoJ argued that the REcoin and DRC ICOs were securities because they were “prototypical” investment contracts. According to the DoJ, applying the landmark Supreme Court decision in SEC v. W.J. Howey Co. (click here to access), each ICO was an investment contact because it represented “an investment of money in a common enterprise with a reasonable expectation of profits to be derived solely from the entrepreneurial or managerial efforts of others.” According to the DoJ, it was irrelevant that no dividends were to be paid to investors; rather, both REcoin and DRC tokens were sold as investments that would increase in value because of the managerial efforts of Mr. Zaslavskiy, and this potential appreciation would be equivalent to a pro rata distribution satisfying the Howey requirement that investors expect profits as a result of their investment.

Although it conceded that currencies are excluded from the definition of currencies, the DoJ said that REcoin and DRC tokens were not currencies solely because they were marketed as cryptocurrencies. Indeed, observed the DoJ, “[t]he superficial resemblance in its label is the only similarity between REcoin/[DRC] and currency.” In its view, currencies under applicable law are only legal tender or something equivalent, “like a cash substitute.”

The SEC generally restated the DoJ’s arguments, although in its supporting brief, it articulated unique challenges ICOs have posed law enforcement agencies in investigating fraud. These challenges include, among other things, the lack of involvement of traditional financial institutions making tracing funds more difficult; the international nature of the blockchain making obtaining and using information from foreign jurisdictions more difficult; a lack of central authority in blockchains forcing the SEC to rely on other sources for information; freezing assets in encrypted wallets is difficult; and the pseudonymous or anonymous nature of the blockchain making it difficult or impossible to identify the attribution of specific digital assets.

Separately,

  • The US Taxman Cometh – for Cryptocurrency Income: The US Internal Revenue Service reminded taxpayers that income from virtual currencies transactions must be reported on their income tax returns and are taxable. The IRS regards virtual currency as property for federal tax purposes. Payments made using virtual currency are subject to information reporting as are other payments made in property (click here for details);

  • G20 Recognizes Potential Cryptocurrency Usefulness: The G20 meeting in Argentina last week acknowledged that “technological innovation,” including underlying crypto-assets, has the potential to enhance the “efficiency and inclusiveness” of the financial system, as well as the economy generally, despite issues crypto-assets have raised regarding consumer and investor protection, market integrity and money laundering. Accordingly, the G20 recommended that regulatory bodies continue to monitor crypto-assets and their risks to consider “multilateral responses as needed” (click here for details);

  • FTC Brings Bitcoin-Related Fraud Lawsuit: The Federal Trade Commission obtained a temporary restraining order against four individuals who the agency alleged operated a pyramid scheme involving the purchase of Bitcoin. The FTC alleged in a complaint that the defendants engaged in deceptive acts by misrepresenting to investors that the referral pyramid scheme they marketed could earn substantial income. The FTC seeks a permanent injunction against the defendants, as well as disgorgement, restitution and other relief. The agency brought its case in a federal court in Florida and named as defendants: Scott Chandler, Thomas Dluca, Louis Gatto, and Eric Pinkston (click here to access details);

  • HK Regulator Halts ICO: Black Cell Technology halted an ICO to the Hong Kong public following regulatory intervention by the Hong Kong Securities and Futures Commission. Black Cell had said it would use proceeds from its ICO to fund a mobile application. The SFC claimed that Black Cell’s ICO constituted the unlawful sale of a collective investment scheme without proper authorization or licensing, or a valid exemption (click here to access details);

  • Toronto Stock Exchange to Establish Crypto-Asset Brokerage Service: The Toronto Stock Exchange announced that Shorcan Digital Currency, its wholly owned subsidiary, along with Paycase Financial, would, during the second quarter of 2018, launch a new cryptocurrency brokerage service focusing on Bitcoin and Ether and create cryptocurrency benchmarks from data from cryptocurrency exchanges worldwide (click here to access details); and

  • US Bans Venezuela Virtual Currency: President Donald Trump issued an Executive Order banning access by US persons to a digital token issued by the Venezuelan government. The digital token, known as the “Petro” and supposedly backed by commodities, including oil, was introduced to help Venezuela avoid international sanctions (click here for a copy of the Executive Order).

  • OFAC Warns Prohibited Persons Using Virtual Currencies Are Still Prohibited Persons: The Office of Foreign Assets Control of the US Department of Treasury indicated in an update to its Frequently Asked Questions related to sanctions compliance, that persons subject to its jurisdiction are prohibited from doing business with persons named on OFAC's Specially Designated Nationals and Blocked Persons list, whether utilizing fiat or virtual currency. OFAC indicated that it may add digital currency addresses to its SDN list to alert the public of specific digital currency identifiers associated with blocked persons. OFAC said that persons that identify digital currency identifiers or addresses associated with prohibited persons "should take the necessary steps to block the relevant digital currency and file a report with OFAC that includes information about the wallet or address's ownership, and any other relevant details." (Click here to access OFAC's revised Q&As, 559 - 563.)

Legal Weeds and My View: Although it seems clear that the SEC views most, if not all, ICO-issued tokens to constitute securities, as I have argued before, this analysis seems to overextend the facts and conclusion of Howey, and make so many unlikely things securities.

In Howey, investors purchased land sales contracts and service contracts in connection with orange groves to derive income from the oranges’ harvest and sale by the promoters. This was not a scheme to gain appreciation in the land’s value through resale.

In connection with the sale of REcoin and DRC tokens, investors were only to obtain “profits” through appreciation in the value of their investments. There was no expectation of receipt of dividends or other indicia of income. Thus the reasonable expectation of profits solely through the efforts of others was attenuated at best. This is because very rarely is the price of any cryptocurrency solely (let alone principally) a function of the value of the project underlying the relevant digital token. Although the market perception of the value of a project is, in part, very much relevant to the price of a digital token (i.e., the network effect), so is the price of Bitcoin and other crypto-assets generally, the potential impact of regulation, market and media hype, the perceived utility of a token and the innovation of a token in advancing distributed ledger technology evolution.

Additionally, the SEC’s view of what constitutes an investment contact would make many collectible objects that are hyped by their developers or promoters, including collectible cars and private gold coins, securities. Although there is some precedent for this view (click here to access Marini v. Adamo, a 2014 court decision from a Brooklyn federal court holding in dictum that there was a “factual basis” to find rare coins securities even if this basis had not been stipulated by the parties), it seems a stretch. Very few, if any, owners of 2008 Tesla Roadsters believe they are driving a security.

No malefactor should be able to escape appropriate punishment and/or sanctions because gaps in law are cleverly exploited. It is critical that the SEC, the Commodity Futures Trading Commission and other regulators proactively consider how cryptocurrencies fit within existing laws and legal precedent to not impede beneficial applications of decentralized ledger technology while ensuring customer protection and market integrity. To the extent law must be amended to rationalize regulation and plug gaps, this should be done sooner not later, and in a thoughtful manner that allocates responsibilities among regulators based on specific criteria that define virtual securities, virtual currencies and other crypto-assets.

  • Commentators Argue CFTC Proposed Actual Delivery Guidance for Virtual Currencies Requires Refinement: The Commodity Futures Trading Commission received over 95 responses to its December 20, 2017 request for comment to a proposed interpretation requiring actual delivery of a virtual currency to a retail client within 28 days to avoid Commission registration requirements by persons selling and either financing or arranging financing of the virtual currency. (Click here for background on the CFTC’s proposed interpretation in the article “CFTC Proposes Interpretation to Make Clear: Retail Client + Virtual Currency Transaction + Financing + No Actual Delivery by 28 Days + No Registration = Trouble” in the December 17, 2017 edition of Bridging the Week.)

In response to a CFTC query as to whether 28 days or a shorter period should be the applicable time period, FIA recommended that the Commission “allow the virtual currency markets to continue to develop” before assessing whether a shorter period is appropriate. Alternatively, the National Futures Association indicated that a shorter period is likely prudent because virtual currencies “are offered primarily for speculative investment purposes, are extremely volatile and have attracted a large number of retail participants.” Gemini Trust Company, which operates a virtual commodity exchange, likewise argued that a 28-day delivery window is “unnecessarily long, does not reflect market practices, and may give rise to fraudulent activity.”

Coinbase, which also operates a virtual currency exchange, challenged CFTC suggestions that only virtual currency transactions consummated on a public blockchain should constitute actual delivery. Coinbase observed that such a view “fails to recognize limitations on the capacity of the public ledger.” The firm also indicated that the CFTC suggestion that wallet holders have “unfettered access to digital assets in those wallets” may compromise anti-money laundering and economic sanctions controls, and “unnecessarily” would expose digital assets to cybertheft. The Chamber of Digital Commerce took a different view however, saying that a purchaser should only be deemed to have full control when a seller or offeror exchange delivers the entire quantity of virtual currency to a purchaser’s wallet or its depository/warehouse wallet “away from” the offeror or offeror’s platform. However, the Chamber argued that the Commission “should not require that [a] purchaser hold the private key for a depository wallet so long as the purchaser has access and the ability to move the virtual currency from the depository without restriction by the seller or offeror.”

FIA challenged the CFTC’s assessment that for actual delivery to occur, there must be no liens by an offeror, counterparty seller, or other person acting in concert with the offeror or seller resulting from the use of margin, leverage or financing. FIA argued that the issue of liens “is not relevant” and that the granting of liens is a common practice in the cash commodity and retail markets (e.g., auto loans). Coinbase, however, said that for actual delivery to occur, “[t]he finance or margin provider should not hold any lien on the digital assets or be able to otherwise restrict transfer resulting from the provision of financing or leverage.”

My View: In my own fielding of questions in response to my frequent public speaking on cryptocurrencies, it has become obvious to me that there may not be a uniform appreciation regarding the varied ways transactions in digital assets may be consummated. Today, there are numerous ways for persons to gain access to cryptocurrencies – through peer to peer transactions directly on relevant blockchains; on crypto-exchanges that, in the United States, likely have to be regulated as a money service business by the Financial Enforcement Crimes Network of the US Department of Treasury and money transmitters by most states and that operate mostly off a blockchain; on decentralized exchanges that may combine elements of both peer to peer transactions and off blockchain messages and information flows; and on or through federally regulated facilities such as exchanges and futures commission merchants regulated by the CFTC, and alternative trading systems operated by broker-dealers under the oversight of the SEC. For the CFTC to more meaningfully evaluate important issues related to actual delivery of virtual currencies, it is important to consider each of the different ways to transact in such digital tokens (as well as varied ways persons protect themselves from cyberhacks), as well as what characteristics make a virtual currency not a security under the oversight of the SEC.

More Briefly:

  • CFTC Commissioner Condemns Commission Budget Cut: Rostin Behnam, Commissioner of the Commodity Futures Trading Commission, strongly condemned last week’s decision by Congress to reduce the 2018 agency budget US $1 million from 2017 levels to US $249 million. According to Mr. Behnam, “[t]he recently released congressional budget… unimaginably cuts the [CFTC’s] funding level, leaving our nation’s critically important derivatives market and general public increasingly vulnerable to systemic (and other) risk, and susceptible to fraud and manipulation.” The CFTC had requested a budget of US $281.5 million. By comparison, the Securities and Exchange Commission received a US $1.652 billion allocation for 2018, a US $47 million increase over its 2017 funding level.

My View: Congress’s decision to decrease funding for the CFTC at a time of increased demand for the Commission’s expertise, surveillance and enforcement activity is, in a word, sad. Staff and leadership of the Commission, not to mention the American public, including merchants and producers, who rely on safe and efficient commodity markets, deserve better. Congress’s action is not only a slap in the face of the very capable and dedicated CFTC team, but another example of the dysfunction so manifest on Capitol Hill these days.

  • SEC Grants Largest Whistleblower Award: The Securities and Exchange Commission awarded three whistleblowers awards in excess of US $82 million, although it noted that two of the recipients “unreasonably delayed” in reporting their information to the SEC although their information later became the “cornerstone” of the SEC’s 2016 enforcement action against Merrill Lynch for purportedly violating customer protection requirements. (Click here for background on the SEC’s enforcement action in the article “Broker-Dealer Sanctioned US $415 Million by SEC for Violating Customer Protection Requirements” in the June 26, 2016 edition of Bridging the Week; the specific identity of the firm was not disclosed by the SEC, but by Labaton Sucharow, the law firm representing the whistleblowers – click here to access its announcement.) The Commission simultaneously declined applications for rewards to three other persons, claiming that their information did not lead to the success of an enforcement action.

  • ICE Clear Authorizes Clearing Members to Utilize Banks of Choice to Settle Payments, Not Solely Banks Related to Its Preferred Financial Institutions: ICE Clear US amended its rules to authorize clearing members to use qualified financial institutions of their choosing to settle transactions with the clearinghouse, instead of solely approved financial institutions the clearinghouse nominated. A QFI must be capable of accepting automatic debit instructions from and be preapproved by the clearinghouse.

  • CFTC Staff Declines CPO Request to Forgo Audit Requirement For Losing Funds Even Where Pool Participants Support Waiver: The Division of Swap Dealer and Intermediary Oversight declined to grant a request by an unnamed commodity pool operator not to file audited financial statements on behalf of three funds, as required, covering the period January 2017 through February 2018. The CPO had claimed that “almost total losses” caused the funds to cease trading in February 2018. The CPO, with the consent of the funds’ investors, had sought the relief to maximize the investors’ final distributions by not incurring audit costs. The CFTC said that waiving the requirement could be “detrimental to the interests of the Pools’ participants, notwithstanding their desire to maximize any funds returned to them.”

  • NFA Resolves Disciplinary Action Against Introducing Broker for Failing to Meet Minimum Regulatory Capital Requirements: Futurepath Trading LLC agreed to resolve an administrative complaint filed by the National Futures Association in November 2017 that alleged it failed to meet its minimum capital requirement of US $45,000 on multiple occasions between 2012 and 2017, and failed to provide requisite notice to NFA. Futurepath agreed to pay a fine of US $10,000 to settle the NFA’s allegations.

For further information:

CFTC Commissioner Condemns Commission Budget Cut:
https://www.cftc.gov/PressRoom/SpeechesTestimony/behnamstatement032218

CFTC Staff Declines CPO Request to Forgo Audit Requirement for Losing Funds Even Where Pool Participants Support Waiver:
https://www.cftc.gov/sites/default/files/idc/groups/public/%40lrlettergeneral/documents/letter/2018-03/18-07.pdf

Commentators Argue CFTC Proposed Actual Delivery Guidance for Virtual Currencies Requires Refinement:
https://comments.cftc.gov/PublicComments/CommentList.aspx?id=2851&ctl00_ctl00_cphContentMain_MainContent_gvCommentListChangePage=1_50

Department of Justice Argues Against Motion to Dismiss Indictment of ICO Sponsor Claiming That Relevant Digital Tokens Are Securities:

ICE Clear Authorizes Clearing Members to Utilize Banks of Choice to Settle Payments, Not Solely Banks Related to Its Preferred Financial Institutions here.

NFA Resolves Disciplinary Action Against Introducing Broker for Failing to Meet Minimum Regulatory Capital Requirements here and here.
 

SEC Grants Largest Whistleblower Award here.

 

©2019 Katten Muchin Rosenman LLP

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About this Author

Gary DeWaal, Securities Attorney, Katten Law Firm, New York
Special Counsel

Gary DeWaal focuses his practice on financial services regulatory matters. He counsels clients on the application of evolving regulatory requirements to existing businesses and structuring more effective compliance programs, as well as assists in defending and resolving regulatory disciplinary actions and enforcement matters. Gary also advises buy-side and sell-side clients, as well as trading facilities and clearing houses, on the developing laws and regulations related to cryptocurrencies and digital tokens.

Previously, Gary was a senior...

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