U.S. V. Zaslavskiy, 17-cr-0647, U.S. District Court for the Eastern District of New York (Brooklyn), just might go down as a definitive case for cryptocurrency enthusiasts. Many, many billions of dollars generated through initial coin offerings (ICOs) are now, according to a federal judge, considered under the jurisdiction of securities laws.
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Federal Judge Rules ICOs are Securities
“Per the indictment, no diamonds or real estate, or any coins, tokens, or currency of any imaginable sort, ever existed – despite promises made to investors to the contrary,” Federal District Judge Raymond J. Dearie ruled. “Simply labeling an investment opportunity as a ‘virtual currency’ or ‘cryptocurrency’ does not transform an investment contract – a security – into a currency.”
Prosecutors in the case are touting it as a first. Maksim Zaslavskiy, a Brooklyn businessman, conspired and committed two counts of securities fraud during two ICOs, they allege. In his defense, Mr. Zaslavskiy suggested the law as written was too vague, and claimed the ICOs in question were currencies, and not, in fact, securities.
ICOs, of course, are a relatively novel and new way for startups to raise capital. Taken from the legacy practice of bringing a traditional company to market through an initial public offering (IPO), ICOs skip over much of the friction IPOs have gathered as more laws and regulations are heaped upon them. Should the same standards apply to ICOs, very few, if any, would survive. ICOs are usually characterized by their lack of officialdom, their appeal to every-day investors without regard to designations such as being accredited. This has made for a wealth transfer revolution, but it has also brought upon investors many scams.
The ruling set the stage for a jury to make the ultimate determination about whether indeed an ICO, as put forward by Mr. Zaslavskiy, is indeed a security. The judge did make it clear he believed the case fit well within securities law as presently constructed. The ruling, if upheld, could set precedence for future ICO-related suits brought about by both alleged victims and regulators.
The defense was hoping to stop the case in its tracks after their client was charged with pushing cryptocurrencies, promising they were backed by diamonds and real estate. Prosecutors could find no evidence to the defense claims, and a judge, rather than ruling on the merits of the case, merely agreed existing law could be applied in this instance if a jury found in favor of the government.
Experts are weighing in on the preliminary decision, insisting this clears the way for the Securities and Exchange Commission (SEC) to get even more aggressive when it comes to ICOs, an industry closing-in on nearly $20 billion raised so far this year. In determining whether a financial product can be classified a security, the SEC often appeals to the a 1946 Supreme Court case which established the so-called Howey Test. Simply put, an asset is a security when an investment of money is handed over to a common business, and that investor expects profits to be siphoned to him by way of another’s toil. Current SEC Chair Jay Clayton, as recently as this summer, has reiterated he believes all such ICOs belong under the securities designation.
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