July 24, 2021

Volume XI, Number 205

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July 22, 2021

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U.S. District Judge Rejects Argument that Sale of “Stand-In” Tokens Was Not a Sale of Unregistered Securities

On January 8, 2021, Judge Richard Seeborg of the United States District Court for the Northern District of California issued an Order denying a motion to dismiss in S.E.C. v. NAC Foundation, LLCet al.  The U.S. Securities & Exchange Commission (SEC) had previously filed a civil complaint against blockchain development company NAC Foundation, LLC (NAC) and NAC’s CEO, Marcus Rowland, alleging that NAC’s and Rowland’s sale of “stand-in” digital tokens constituted a fraudulent and unregistered sale of digital securities.  The Department of Justice (DOJ) brought a parallel criminal proceeding, alleging violations of federal wire fraud and money laundering statutes.  DOJ also filed a separate criminal case against former high-profile lobbyist Jack Abramoff in connection with his role in the promotion of NAC’s digital assets.

The SEC alleged that NAC and Rowland sought to introduce and sell “AML Bitcoin,” a new digital asset.  However, “because certain aspects of the ‘privately regulated public blockchain’ upon which AML Bitcoin would operate were still under development,” participants in the initial coin offering (ICO) for AML Bitcoin would not be issued actual AML Bitcoin tokens, but instead would receive “stand-in ‘ABTC tokens,’” which could be exchanged for AML Bitcoin once AML Bitcoin’s blockchain was completed.  The defendants claimed that AML Bitcoin could be traded “on participating exchanges and trading websites,” but that participation in the ICO did not result in an “investment contract” under U.S. securities laws.  The ICO ran from October 2017 to February 2018, and the defendants raised approximately $5.6 million, primarily from retail investors.  While the ABTC tokens were available for online trading, the defendants made no effort to register the ABTC tokens – or AML Bitcoin – as a security with the SEC.  After the SEC filed its complaint, the defendants filed a motion to dismiss, arguing that the SEC had failed to establish that the ABTC tokens were “securities” under the federal securities laws.

Judge Seeborg looked to the Supreme Court’s decision in S.E.C. v. W.J. Howey Co. and held that the ABTC tokens were qualifying securities.  Specifically, Judge Seeborg looked to the Ninth Circuit’s three-part Howey test, which requires “(1) an investment of money (2) in a common enterprise (3) with an expectation of profits produced by the efforts of others.”

With respect to the “common enterprise” element, Judge Seeborg noted that “a common enterprise exists where the investment scheme involves either ‘horizontal commonality’ or ‘strict vertical commonality.’”  He further noted that “‘vertical commonality may be established by showing that the fortunes of the investors are linked with those of the promoters.’”  Based on that standard, Judge Seeborg found that it was “quite plausible – and indeed, probable” that strict vertical commonality existed between the defendants and the ICO participants.  This was because “the ‘fortunes’ of the ICO participants – as measured by either the trading value of their ABTC tokens or the future trading value of AML Bitcoin – were ‘linked’ to the ‘fortunes’ of defendants – as measured by the trading value of their ABTC tokens, the future trading value of AML Bitcoin, or the general success of their enterprise.”

Judge Seeborg analogized another factually similar case, S.E.C. v. Telegram Group, Inc., where the court held that the SEC had made a “substantial showing of strict vertical commonality” when the ICO participants’ potential profits directly depended upon the defendants’ success in developing an underlying blockchain system and whose defendants also retained ICO tokens.  However, unlike the NAC defendants, the Telegram defendants had pledged to relinquish control of the tokens they retained during the ICO.  As such, Judge Seeborg held that the NAC defendants’ financial fortunes were even more strongly tied to the ICO participants because they had made no such pledge to relinquish their tokens.

With respect to the “expectation of profits,” Judge Seeborg held that the SEC had alleged sufficient facts to show both that the ICO participants had an expectation of profit and that the profits were a product of the efforts of a person other than the investor.  Specifically, ICO participants expected “that both the ABTC tokens and AML Bitcoins would be tradeable on stock market-like exchanges,” and that both the ABTC tokens and AML Bitcoins “could ‘appreciate in value through speculative trading.’”  The Judge noted that, apart from being redeemed for AML Bitcoin at some future point, ABTC tokens were “solely objects for trading.”  Moreover, any objectively reasonable ICO investor in the ABTC tokens “likely viewed his or her prospective trading success as a function of the defendants’ efforts” because “the demand for ABTC or AML Bitcoin . . . would rely almost exclusively on market perception of defendants’ work product.”  In other words, the “ICO participants ‘recognized that an investment in [ABTC tokens] was a bet that [defendants] could successfully encourage the mass adoption of [AML Bitcoin], thereby enabling a high potential return’ on either the ‘resale of the [ABTC tokens]’ or the future sale of AML Bitcoin, for which ABTC tokens could be redeemed.”

The NAC case is the latest of several recent securities fraud cases filed by the SEC involving digital assets.  And Judge Seeborg’s decision is another example of function over form in a securities fraud case involving digital assets.  That is, no matter how many disclaimers and warnings you put in your marketing materials, if the ICO passes the Howey test, you will need to register with the SEC – or operate under an exemption – in order to sell the asset.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 35
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Leslie Epstein Litigation Attorney Faegre Drinker Biddle & Reath Washington, D.C.
Associate

Leslie Epstein focuses her practice on complex commercial litigation and white collar investigations. Her recent experience includes representation of energy and oil companies related to environmental criminal and workplace safety charges. Leslie has also helped clients secure merger clearance and defend antitrust enforcement actions brought by the Federal Trade Commission (FTC).

During law school, Leslie worked as a judicial extern for the Honorable Judge Catherine Perry of the U.S. District Court for the Eastern District of Missouri. After working as a judicial extern, Leslie...

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Nicholas Wendland Attorney Chicago
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Nicholas A.J. Wendland represents and advises financial institutions in navigating securities, commodities and exchange regulations. Drawing on his extensive experience at FINRA and the New York Stock Exchange (NYSE), as well as in private practice, Nicholas assists his clients in understanding and complying with securities and commodities laws, as well as regulations and rules set by self-regulatory organizations. Nicholas’ in-depth understanding of complex financial products, global regulations, and the business and operation requirements of his...

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Peter W. Baldwin, a former federal prosecutor, defends clients facing white-collar criminal and internal investigations, securities enforcement actions, cybersecurity issues, and other complex civil and criminal litigation matters. Prior to joining Drinker Biddle, Pete spent over eight years as an Assistant United States Attorney in the U.S. Attorney’s Offices for the Eastern District of New York and Central District of California. In this role, he supervised all aspects of criminal investigation and prosecution, first as a member of the Major Frauds Section in the Central...

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