Acceptance of Cryptocurrency Magnifies Authorized Securities Dangers

In current days, a number of main firms have moved towards implementing cryptocurrency transactions of their enterprise.  Tesla acknowledged in its current Annual Report that it had “invested an mixture $1.50 billion in bitcoin” and anticipated to “start accepting bitcoin as a type of fee for [its] merchandise within the close to future.”[i]  Mastercard introduced that it might “begin supporting choose cryptocurrencies instantly on [its] community” in 2021.[ii]  And BNY Mellon issued a press launch concerning the opening of a brand new “enterprise Digital Property unit” to help clients of their custody and administration of cryptocurrency holdings.[iii] 

Regardless of these strides towards mainstream acceptance of cryptocurrency to be used in on a regular basis transactions, there may be authorized threat beneath the securities legal guidelines, together with SEC enforcement threat, surrounding the discharge and implementation of latest cryptocurrencies.  The previous Chairmen of the SEC and CFTC printed a joint op-ed in 2018 stating that the “SEC will vigorously pursue those that search to evade the registration, disclosure and antifraud necessities of our securities legal guidelines” in reference to the issuance of cryptocurrencies.[iv]  In the identical vein, quite a few courts—together with in each enforcement actions and personal class motion lawsuits by buyers—have now held that the gross sales of sure cryptocurrencies could also be “funding contracts,” that are securities topic to the securities legal guidelines and regulation by the SEC.[v] 

The Securities Act of 1933 contains the “funding contract” throughout the ambit of the time period “safety,”[vi]  however doesn’t particularly outline what an funding contract is.  The Supreme Court docket later addressed the definition of “funding contract” in SEC v. W.J. Howey Co., which made reference to the state securities legal guidelines that preceded the ’33 Act.[vii]  The so-called Howey take a look at defines an funding contract as a “contract, transaction or scheme whereby an individual invests his cash in a typical enterprise and is led to count on earnings solely from the efforts of the promoter or a 3rd celebration.”[viii] 

Though gross sales of cryptocurrencies are usually not essentially funding contracts, it’s tough to flee such designation for a number of causes.  First, a cryptocurrency community will almost at all times be a “frequent enterprise” as a result of purchasers depend upon the viability and usefulness of the community to present worth to their holdings.[ix]  Second, provided that current cryptocurrency bulletins have triggered vital worth motion in bitcoin and different main cryptocurrencies,[x] it could be inevitable that preliminary purchasers of latest cryptocurrencies count on revenue as their cryptocurrency turns into extra extensively accepted.  Third, new cryptocurrencies will doubtless require coordinated advertising and marketing efforts to change into accepted and helpful available in the market.

To this finish, the SEC launched the Framework for “Funding Contract” Evaluation of Digital Property (the “Framework”), which is focused at cryptocurrency creators trying towards Preliminary Coin Choices (“ICO”).[xi]  The Framework explains that most of the steps to create a cryptocurrency community and plan an ICO are elements that might result in the cryptocurrency as an funding contract, together with:

  • The “improvement, enchancment (or enhancement), operation, or promotion of the community”;

  • The retention of some community “important duties” to be carried out by an “Energetic Participant,” or “AP”;

  • The creation of a market to worth to the cryptocurrency; and

  • The presence of a revenue motive for the creator

These elements, together with anticipated appreciation of the asset, weigh in favor of classifying the cryptocurrency a “safety.”[xii]  The Framework additionally explains the situations that militate in opposition to the designation of a cryptocurrency as a safety, together with:

  • The community and cryptocurrency are “absolutely developed and operational” and the asset is instantly in a position for use on its community as forex;

  • The cryptocurrency was created to satisfy a use case for present customers, fairly than to generate worth by means of the institution of the community;

  • The cryptocurrency’s “prospects for appreciation . . . are restricted”; and

  • The financial profit generated from the cryptocurrency’s acquisition is merely “incidental” to its use for its supposed goal, and the cryptocurrency shouldn’t be marketed for potential appreciation

Whereas many cryptocurrencies intention to attain this “decentralized” construction ultimately, many nascent cryptocurrencies could however initially fail to satisfy these standards.[xiii]  The SEC has now introduced a number of enforcement actions for failure to register sure cryptocurrencies as securities beneath Part 5 of the ‘33 Act.  The messaging platform operator Kik Interactive (“Kik”), for instance, was just lately discovered liable in an enforcement motion arising out of its 2017 preliminary providing of its Kin cryptocurrency.[xiv]  Kik, previous to the discharge of the Framework, particularly instructed potential customers that by shopping for into Kin early, they “might make some huge cash.”[xv]  Kik additionally continued to play an lively position within the success of Kin by integrating the cryptocurrency into its personal and different purposes.[xvi]  On these bases, the courtroom granted plaintiff’s abstract judgment on the SEC’s Part 5 declare.[xvii]  Whereas Kik explicitly marketed Kin as an appreciating asset, potential consumers could come to count on that new cryptocurrencies will recognize as they change into extra extensively accepted available in the market.  It could thus change into more and more tough to promote new cryptocurrencies in a fashion that doesn’t give rise to an funding contract and, thus, regulation as a safety.

Though one SEC Commissioner, Hester Peirce, has proposed a three-year “protected harbor” from securities legal guidelines to permit for the implementation of decentralized cryptocurrency networks,[xviii] you will need to word that that isn’t at present the regulation.  Corporations ought to assess rigorously whether or not cryptocurrency transactions fall throughout the ambit of securities legal guidelines and take acceptable steps in mild of such willpower, and particularly study the affect of promoting the cryptocurrency each to probably consumers and potential adopters.


[i] Tesla, Inc. SEC Type 10-Ok (Feb. 8, 2021) at 23.

[iv] Jay Clayton and Christopher Giancarlo, Regulators are cryptocurrency, Wall Road Journal, Jan. 24, 2018.

[v] See, e.g., SEC v. Telegram Group, Inc., 448 F. Supp. 3d 352, 379 (S.D.N.Y. 2020); SEC v. Kik Interactive, Inc., — F. Supp. 3d –, 2020 WL 5819770, at *5 (S.D.N.Y. September 30, 2020); Balestra v. ATBCOIN LLC, 380 F. Supp. 3d 340, 357 (S.D.N.Y. 2019); Hodges v. Harrison, 372 F. Supp. 3d 1342, 1348 (S.D. Fla. 2019); Solis v. Latium Community, Inc., No. 18-10255, 2018 WL 6445543, at *3 (D.N.J. Dec. 10, 2018).

[vi]See 15 U.S.C. § 77b(a)(1).

[vii] 328 U.S. 293 (1946).

[ix] Recognized at “horizontal commonality,” the “frequent enterprise” prong of the Howey take a look at is happy the place “the pooling of property from a number of buyers [causes] all [to] share within the earnings and dangers of the enterprise.”  SEC v. SG Ltd., 265 F.3d 42, 54 (1st Cir. 2001).  It’s price noting, nonetheless, that the SEC doesn’t “view a ‘frequent enterprise’ as a definite ingredient of the time period ‘funding contract.’”  See SEC Framework for “Funding Contract” Evaluation of Digital Property at 2 & n.10.

[x]See, e.g. Ryan Browne, Bitcoin hits a file excessive of almost $50,000 as main companies flock to crypto, CNBC, Feb. 15, 2021.

[xiii] See id. at 9-11 (“Different Related Issues”).

[xiv]See Kik Interactive, 2010 WL 5819770, at *2.

© 2020 Binder & Schwartz LLP. All Rights Reserved
Nationwide Regulation Evaluate, Quantity XI, Quantity 47

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