“Offering of securities – but to whom?”

February 20, 2020  |   By: Max Dilendorf, Esq., Bari Zahn Esq., and Kareem Tabba

Short synopsis of the SEC v. Telegram hearing on preliminary injunction

The long-awaited hearing on the SEC’s motion for preliminary injunction and Telegram’s cross-motion for summary judgement dismissing the complaint took place yesterday at the courthouse in the Southern District of New York.

Judge Kevin Castel, who demonstrated exceptionally thorough understanding of the technology, market and central issue in the case, did not rule from the bench but indicated that the decision will be forthcoming before April 30th – the cut-off date under Telegram’s purchase agreements to distribute Grams to purchasers.

Such decision can bring the much-needed clarification for certain projects that currently face regulatory conundrum in the US – on one hand, they are eager and willing to comply with securities regulations when raising capital via token sales, on another hand, issuing tokens as securities can create regulatory uncertainty over the future use of such tokens on the network and the ability to develop the network without application of securities regulations to every single token transfer within the network.

Both the SEC and Telegram urged the court to look at “economic realities” of the transaction, yet their interpretation of what those are were worlds apart.

SEC argued that the initial purchasers of Grams (or rights to receive Grams) – the 171 sophisticated investors and VC funds worldwide – were not truly the purchasers but, rather, acted as underwriters in Telegram’s unregistered offering of securities to the public. SEC urged the court to look at both the private placement to initial purchasers under Regulation D, and the subsequent potential re-sale of Grams by these initial purchasers as one transaction. According to SEC, Telegram sought wide-spread distribution and re-sale to public and, thus, violated the exemption framework under Regulation D when selling Grams to initial purchasers.

Jorge Tenreiro, representing the SEC, argued that Telegram “lost control” of the private placement when the initial purchasers started re-selling their rights to receive Grams.

According to Telegram’s counsel, the company fully complied with Regulation D exemption and did not engage in unregistered sale of securities. The offering stopped with the sale to accredited investors (initial purchasers), and the US securities regulations should not necessarily apply to potential later transfers of Grams.

Alex Drylewski, arguing on behalf of Telegram, urged the court not to weave together two distinct features of an “investment contract” – the asset itself and the promise surrounding the offering and sale of such asset. Just like the oranges in Howey were not inherently securities, neither are Grams without the accompanying promise and reliance on the essential managerial efforts of Telegram’s team. While Telegram is not disputing that the offering and sale to initial purchasers was an offering of securities, the later re-sale of Grams by initial purchasers after the network launch is not. The fact that Telegram would continue taking certain actions in connection with the network until the governance is fully decentralized are merely transitory services and do not rise to the “essential managerial efforts” necessary to constitute an “investment contract” under Howey.

Moreover, drawing on the subjective intent of the purchasers – counsel for Telegram argued that BTC and ETH purchasers are also investors and not consumers, yet, SEC does not consider either of those currencies a security. Mr. Drylewski outlined three reasons why subsequent purchasers would buy Grams from the original investors: (1) as a medium of exchange (like BTC), (2) to build applications and power smart contracts on telegram blockchain (like ETH), or (3) for speculation (like gold, currencies and other commodities). None are Howey material.

Conflating asset with the promise would lead to disastrous consequences making it impossible to build out a functioning decentralized network. The hearing comes less than two weeks after Hester Pierce proposed to create a safe harbor addressing the very same issue:

“We have created a regulatory Catch 22.  Would-be networks cannot get their tokens out into people’s hands because their tokens are potentially subject to the securities laws.  However, would-be networks cannot mature into a functional or decentralized network that is not dependent upon a single person or group to carry out the essential managerial or entrepreneurial efforts unless the tokens are distributed to and freely transferable among potential users, developers, and participants of the network.  The securities laws cannot be ignored, but neither can we as securities regulators ignore the conundrum our laws create”

Judge Castel agreed that the asset itself inherently is not a security and drew attention to the central question in the case: the initial sale of Grams was an offering of securities – but to whom? Did the offering stop at private placement, or does it continue to subsequent re-sales after the network launch? Thanking both parties for submitting a stipulation of undisputed facts, Judge Castel hinted that neither party’s position is weak leaving no indication as to which way he would rule.

 

This article is provided for your convenience and does not constitute legal advice. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

Other Resources

ALL ARTICLES

Our Team

/

Max Dilendorf, Esq.

Max Dilendorf’s practice is focused primarily on digital assets, cryptocurrency, and technologies that drive blockchain and related distributive computing networks. An early adopter of virtual currency and its associated legal, financial, and business implications, Max is considered the go-to expert for ...

Learn More
Max

Bari Zahn, Esq.

Bari Zahn has nearly 20 years of experience practicing at global law firms in New York. Bari has represented a broad array of multinational clients on U.S. and cross-border transactions. She has supervised legal teams worldwide and has extensive management experience as the Founder, former CEO and General ...

Learn More

Adam Pollock

Adam is one of the nation’s leading young whistleblower lawyers.  He brings with him a special ability not just to litigate, but to investigate – and understand – complex organizations and transactions.  His extensive familiarity with tech issues is built on a computer science degree and work as a ...

Learn More
Adam

Steve Cohen

Steve contributes extensive business and problem-solving experience to challenges that may require litigation – or may help avoid it.  Indeed, his perspective on litigation is influenced by his experience as a three-time internet start-up CEO.

Steve served on Ronald Reagan’s 1980 presidential campaign ...

Learn More
Steve

Pamela A. Fuller, Esq.

Pamela A. Fuller is a corporate and international tax attorney, with over two decades of experience.  She advises a wide range of clients–including private and public companies, joint ventures, private equity and hedge funds, C-Suite executives, private U.S and foreign individual clients, and government ...

Learn More

Lindsay Rubel, LLM

Ms. Rubel advises clients on all aspects of federal, state, and international tax matters. She has advised corporations, partnerships, limited liability companies and their owners on the tax implications of a variety of transactions, including acquisitions, dispositions, mergers, reorganizations and dissolutions. ...

Learn More
Lindsey

Ivanna Korniiuk

Ivanna has 7 years of law practice in Europe, namely in the field of corporate law, M&A transactions, banking and finance. As a senior associate, she advised local, EU, US and multinational clients with respect to their business activities in Ukraine.

Particularly, Ivanna, together with junior associates ...

Learn More
Ivanna

Peter Zinkovetsky, Esq.

Peter Zinkovetsky is an experienced and highly rated New York attorney who represents local and international clients.  Peter has been named a Rising Start by Super Lawyers Magazine for six years in a row.  Rising Star Award is given to less than 2.5 percent of attorneys in New York State.  New York Real ...

Learn More
Peter Zinkovetsky