Understanding what the DAO did wrong

September 3, 2017  |   By: Max Dilendorf, Rika Khurdayan and Gleb Zaslavsky

2017 witnessed explosive growth in the use of token generation events (also known as ICOs, for “initial coin offerings”) to raise capital for startups and other Internet firms. According to the New York Times, more than $3.2 billion had been raised by late October, already representing a 3,000% increase over 2016.

But 2017 also brought a Securities and Exchange Commission (SEC) report that sent shockwaves through the world of ICOs. In July 2017, the SEC released an investigative report on DAO Tokens, a virtual token created and sold by The DAO, a decentralized autonomous organization.

In its report, the SEC concluded that DAO Tokens were securities, and so had to be registered before they could be offered or sold. SEC registration is an onerous process, and so the SEC’s report has highlighted the importance of proper legal planning when developing a new virtual token.

A Brief History of The DAO

Decentralized autonomous organizations are essentially companies with a governance structure implemented through a blockchain. The concept was first introduced by the chief technology officer of Slock.it, a German blockchain company, and further developed in a white paper published on its website.

The DAO was established as a first-generation proof of concept for a decentralized autonomous venture capital fund. It was to be a for-profit business that would fund projects curated by DAO Curators, who were selected by Slock.it, and voted on by those who purchased DAO Tokens.

When The DAO was launched, it raised 12 million Ether (a cryptocurrency running on the Ethereum blockchain) from investors in exchange for DAO Tokens. At the time, this amount was valued at roughly $150 million.

However, the code that The DAO deployed to the Ethereum blockchain to permit purchases of DAO Tokens was flawed, and an attacker was able to steal one-third of the Ether raised by The DAO shortly after launch. Fortunately, an update to the Ethereum blockchain enabled all the Ether raised by the DAO—including the stolen Ether—to be returned to investors, but the damage to The DAO was already done.

Why DAO Tokens Were Securities

 In its report, the SEC used the Howey test to determine that DAO Tokens were securities. The Howey test is derived from a 1946 U.S. Supreme Court case, and remains the principal framework for determining status as a security. The SEC examined the four Howey elements in its report, as summarized below.

  • An investment of money: To purchase DAO Tokens, users were required to pay in Ether. Because Ether is something of value, the SEC found that the first element of Howey had been met.
  •  In a common enterprise: The SEC only briefly touched on the element of commonality, employing the broadest standard that federal courts use: so-called horizontal commonality. This standard is met when there is a pooling of investors’ funds, as there was in the case of The DAO.
  • With an expectation of profits: The DAO was intended to be a for-profit entity. Investors would vote on projects to be funded by The DAO, and could then share in any return on those investments.
  • Derived from the managerial efforts of others: The SEC pointed to two principal attributes of DAO Tokens in this regard: First, control over The DAO and what projects investors would consider funding was largely in the hands of Slock.it and its chosen DAO Curators. Second, investors’ voting rights were limited, both because of Slock.it’s control and because of the difficulty the pseudonymous, geographically dispersed investors would have in forming an effective voting bloc.

Conclusion: What Startups Can Learn from The DAO

The SEC’s report provides valuable insight into how federal securities laws will apply to virtual tokens going forward. The central takeaway is that such tokens may be securities under existing precedent, and must comply with existing laws if so. Accordingly, what follows are two of the most important lessons for startups to take from the SEC report:

  • The need to avoid classification as a security: Although The DAO escaped prosecution in this case, failing to register a security before selling it in the United States can subject a person to both civil and criminal liability. Because registration is a cumbersome, expensive process, the optimal strategy for addressing securities law will often be structuring a token and ICO so that it fails the test for a security.
  • The significance of a white paper: The SEC considered the contents of The DAO’s white paper and other marketing materials in understanding the nature of the token. Consequently, developers should work with a knowledgeable securities lawyer to review their white papers, websites, and similar materials.

 

 

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.

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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 ...

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Gleb Zaslavsky, LLM

Gleb Zaslavsky’s practice involves investment and startup structuring and support, international and domestic corporate transactions in the blockchain and technology industries, and venture capital.

Gleb assists international and domestic entrepreneurs, businesses, venture investors and startups at ...

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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 ...

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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 ...

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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. ...

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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 ...

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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 ...

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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 ...

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