September 28, 2021

Volume XI, Number 271

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September 27, 2021

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Statute of Limitations Halt Crypto Currency Business Class Actions

Five plaintiffs recently voluntarily dismissed their putative securities class action lawsuits one year after sending shock waves through the crypto world when they filed eleven alleged class action lawsuits against cryptocurrency exchanges and issuers.  The five dismissals come shortly after recent rulings in two of the eleven lawsuits dismissing plaintiffs’ claims for failure to bring the claims within the one-year statute of limitations.

Last April, law firms Roche Freedman LLP and Selendy & Gay PLLC filed eleven class actions in the Southern District of New York.  As with SEC regulatory actions against the virtual currency industry, the private litigants’ core allegation was that the companies violated §§ 5 and 12(a)(1) of the Securities Act of 1933 by engaging in the unregistered sales of securities when launching their initial coin offerings (ICOs), and, as to the exchanges, conducted millions of transactions without registering with the SEC as an exchange or broker-dealer.  Plaintiffs claimed that the outcome was that investors were not aware of the implicit risks of these investments because a registration statement was never filed with the SEC or state regulators.

Plaintiffs had a difficult time in explaining why the lawsuits were not time-barred. The complaints acknowledged that the investors purchased tokens beginning in 2017, a date that far exceeds the one-year statute of limitations for securities violations.  The plaintiffs argued, however, that it was not until the April 3, 2019 release of the nonbinding Framework for “Investment Contract” Analysis of Digital Assets, a report issued by the Strategic Hub for Innovation and Financial Technology of the SEC, that the statute of limitations started running.  The report summarized a list of factors relevant to the Howey analysis with respect to digital assets.  This report, plaintiffs alleged, was the dividing line after which a reasonable investor would know that the tokens they purchased were unregistered securities.  Under this argument, the April 3, 2020 filing date for these class actions—exactly one year after the report was issued—is particularly significant.

Thus far, courts are not convinced.  Two of the eleven cases—against BProtocol Foundation (Bancor) and Bibox Group Holdings, Ltd.—were respectively dismissed in February and April of this year.  In a three-page opinion, Judge Alvin Hellerstein dismissed the action against Bancor on multiple grounds, including that the named plaintiff missed the one-year statute of limitations, the plaintiff lacked standing as he did not allege that he sold any tokens at a loss, and there was no personal jurisdiction over Bancor, an Israeli company that merely promoted its offerings in the U.S.  In April, Judge Denise Cote dismissed plaintiff’s claims against Bibox Group Holdings, Ltd. finding that the named plaintiff filed his claims too late and that he did not have standing to pursue claims for tokens he had not purchased.  

The voluntary dismissals on April 27 against Quantstamp, Inc., Status Research and Development GmbH, Civic Technologies Inc., KayDez Pte. Ltd. and HDR Global Trading Ltd. come less than two weeks after dismissal of the Bibox class action.  Although no reason was given for the voluntary dismissals, counsel for the plaintiffs likely saw the writing on the wall and concluded that their clients’ claims are no longer viable given the statute of limitations rulings in the Bancor and Bibox decisions.  The cases against Tron Foundation, KuCoin, Block.One, and Binance, as of now, remain.  However, three of the four defendants have filed motions to dismiss arguing, among other things, that the claims are not timely.  In the fourth remaining case—against KuCoin—plaintiffs likely did not dismiss the complaint because KuCoin has not appeared in the case yet.  If and when KuCoin does appear, expect to see the statute of limitations defense in that case as well as other future cases against issuers and exchanges where the tokens at issue were purchased more than one year before filing.

Copyright ©2021 Nelson Mullins Riley & Scarborough LLPNational Law Review, Volume XI, Number 127
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About this Author

Matthew G. Lindenbaum Financial Litigation Attorney Nelson Mullins
Partner

Matthew represents companies in high-stakes litigation with an emphasis on class action defense in the automotive and financial services industries, including the emerging crypto-currency industry. He also defends companies and individuals in government investigations and enforcement actions involving the United States Department of Justice, the Securities and Exchange Commission, and conducts internal investigations for companies and special board committees.

Matthew is the leader of Nelson Mullins’ Boston Litigation Team and has been...

617-217-4632
Robert L. Lindholm White Collar Defense Lawyer Nelson Mullins
Partner

Rob focuses his practice on government investigations and white collar defense, high stakes business litigation and class action defense, and e-discovery and litigation readiness. He represents financial institutions, Fortune 500 companies, private equity firms, hedge funds, and companies/individuals involved in the cryptocurrency industry in a wide array of internal/government investigations and commercial litigation.

704.417.3231
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