Securities Industry Commentator by Bill Singer Esq

January 18, 2021

In the Matter of WIRELINE, Inc. (SEC Order)

Concurrence in the Matter of Wireline, Inc. (Public Statement by SEC Commissioner Hester M. Peirce)
Why do we say that we "take" a crap (or an even more impolite word) when we go to the bathroom, but we say that we don't "give" a crap when we don't care? Where were folks taking crap and how were they giving crap before those expressions came into vogue?  And why the hell would someone gift wrap and present a crap to someone else as a sign of their earnest intentions? Alas -- sigh -- I am indeed laboring under the endless isolation of COVID. Consider a recent FINRA regulatory settlement for what prompted my latest round of intellectual endeavors.

Silicon Valley Streaming Service Executive Indicted in Alleged "Pump and Dump" Stock Fraud Scheme (DOJ Release)
In an Indictment filed in the United States District Court for the Northern District of Illinois, David Foley, former Director of Nanotech Entertainment Inc. and investment manager Bennie Blankenship with wire fraud and securities fraud in connection with transactions in NanoTech Gaming Inc. ("NTGL"). As alleged in part in the DOJ Release:

[F]oley acquired shares in NTGL and fraudulently caused them to be unrestricted.  Blankenship promoted the NTGL shares by exaggerating the stock's prospects for success, thereby artificially inflating the share price, the indictment states.  Foley then schemed with others to sell the pumped-up stock to the investing public, the indictment states.  The fraud scheme lasted from 2013 to 2016, and during a portion of that time Foley was incarcerated in California on an unrelated criminal conviction, the indictment states.

Indictment Charges Madison Man with Defrauding Investors of Alcoholic Beverage Company (DOJ Release)
In an Indictment filed in the United States District Court for the District of Connecticut, Brian Hughes was charged with seven counts of wire fraud, five counts of illegal monetary transactions, one count of money laundering, and four counts of tax evasion. As alleged in part in the DOJ Release:

[I]n March 2015, Hughes founded Handcrafted Brands, LLC ("HCB"), for the purpose of raising money to purchase Salute American Vodka, ("Salute") an alcoholic beverage company.  Hughes subsequently solicited and received funds from investors ostensibly for the purchase and subsequent development of Salute.  Hughes represented to investors that their investments would be used to purchase and operate Salute, that investors would be compensated with equity shares of HCB or Salute, and that Hughes would not take a salary from HCB.  In fact, Hughes misused investor funds on expenses unrelated to the purchase and development of Salute and diverted hundreds of thousands of dollars of investor funds for his personal use.  In addition, some victim investors were not compensated with equity shares of HCB or Salute.

The indictment further alleges that Hughes solicited investments purportedly on behalf of another company, which is identified in court documents as "Company-1."  In fact, Hughes had no official relationship with Company-1 and could not raise capital on its behalf.  Hughes also solicited investment money by falsely representing to investors that he owned a percentage share of Company-1, that he planned to acquire Company-1, and that Company-1 or its parent company planned to acquire his business.  In fact, Hughes spent the investment money associated with Company-1 on personal expenses and on other expenses unrelated to Company-1.

It is further alleged that, in order to conceal his fraud, Hughes made "lulling" payments to investors.  Lulling payments purportedly represent profits from an initial investment designed to inspire confidence that an investment is yielding results, and are made to encourage further investment.  In fact, the source of the funds underlying the lulling payments made by Hughes included funds from other investors.

Finally, it is alleged that Hughes evaded the assessment of his tax obligations for the 2015 through 2018 tax years by substantially underreporting his income to the IRS.

In the Matter of Wireline, Inc., Respondent (SEC Order Instituting Cease-and-Desist Proceedings and Imposing Penalties, '33 Act Rel. No. 10920, Admin. Proc. File No. 3-20206)
Without admitting or denying the findings, and in anticipation of the institution of SEC proceedings, Wireline, Inc. submitted an Offer of Settlement, which the SEC accepted. Respondent Wireline entered into undertakings, among which, the company will notify 28 investors that the company will not distribute tokens pursuant to the Simple Agreements for Future Tokens ("SAFTs"). Further, Respondent was ordered to cease-and-desist from further violations and to pay a $650,000 civil penalty. As set forth in the "Summary" portion of the SEC Order:

1. Between January and September 2018, Wireline, an early-stage project focused on the development of a decentralized, blockchain based platform for "microservices" applications, conducted a multi-phase securities offering through which it raised over $16.3 million (the "Offering"). Wireline offered and sold securities in the form of investment contracts when it offered and sold digital assets through simple agreements for future tokens ("SAFTs"). The SAFTs provided that upon the public release of Wireline's marketplace, Wireline would distribute those digital tokens to investors, who were counterparties to the SAFTs. Wireline represented to investors that the funds would be used to develop the Wireline microservices platform and that the tokens would be used as the means of exchange between software developers and end-users on Wireline's marketplace. The Offering was not registered pursuant to the federal securities laws, and the offer and sale did not qualify for an exemption from the registration requirements. Wireline never distributed the digital tokens to investors.

2. Based on the facts and circumstances set forth below, the digital tokens offered and sold by Wireline through SAFTs were offered and sold as investment contracts, and were therefore securities under SEC v. W.J. Howey Co., 328 U.S. 293 (1946) and its progeny, including the cases discussed by the Commission in its Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO (Exchange Act Rel. No. 81207) (July 25, 2017) (the "DAO Report"). Wireline sold investment contracts in exchange for the investment of money or other contributions of value, including other digital assets. A purchaser in Wireline's Offering had a reasonable expectation of obtaining a future profit based upon the efforts of others. More specifically, purchasers reasonably expected Wireline and its management to make efforts to develop the Wireline platform and create demand and market appreciation for the Wireline tokens, which had no consumptive use at the time of the Offering. Wireline violated Section 5(a) and 5(c) of the Securities Act by offering and selling these securities without having a registration statement filed or in effect with the Commission or qualifying for an exemption from registration.

3. Wireline also violated the antifraud provisions of the federal securities laws with respect to the offering by making materially false and misleading statements about the viability of its platform and the timetable for the issuance of the tokens. In connection with its securities offering, Wireline falsely asserted that more than 100 developers were publishing applications to its marketplace, that its platform had been functioning in "private beta" for more than nine months, and that the token distribution was imminent. These statements materially misrepresented Wireline's functionality and progress, and more than two years since it made these statements, Wireline's platform has not launched. As a result, Wireline violated Sections 17(a)(2) and (3) of the Securities Act.

Concurrence in the Matter of Wireline, Inc. (Public Statement by SEC Commissioner Hester M. Peirce)
Reprinted below in full:

I support most of the Commission's settled enforcement action against Wireline, Inc., but write to highlight a concern about the settlement. Wireline offered and sold digital assets using a Simple Agreement for Future Tokens ("SAFT"), pursuant to which purchasers invested money in exchange for the receipt of the tokens to be issued when the Wireline microservices platform went live in the future. These tokens, which never were issued because the platform is not yet operational, were to be the platform's currency. The SAFTs were explicitly sold as part of a securities transaction. Wireline did not, however, register the offers and sales or qualify for an exemption from registration. Moreover, in the course of selling these investment contracts, Wireline materially misrepresented key facts about the state of the platform's development. These violations form the basis for the enforcement action, which I support. However, by including a provision whereby Wireline will not distribute the tokens pursuant to the SAFTs, this settlement perpetuates an approach that suggests that tokens themselves are securities and thus complicates the development of crypto networks.

The Commission and courts have treated the token as inseparable from the SAFT by treating the pre-sale and public distribution of tokens as one event.[1] Although the language is usually a bit vague, the tokens promised in the SAFT are effectively treated as securities when delivered because they were first sold as part of an investment contract. Moreover, tokens sold by the SAFT investors to the general public are similarly treated as securities, albeit usually with some obfuscation and protestation. In Telegram, for example, the court insisted that "[w]hile helpful as a shorthand reference, the security in this case is not simply the Gram, which is little more than alphanumeric cryptographic sequence."[2] Yet the court goes on to find "that the delivery of Grams to the Initial Purchasers, who would resell them into the public market, represents . . . the completion of a public distribution of a security without a registration statement."[3] The Gram was the thing being distributed, so it sure sounds as if the Gram is the security under the court's analysis. Similarly, the Kik court explained, "Purchasers in the two sales received the same class of securities, fungible Kin that were equal in value."[4] One legal commentator explained the problem this way:

[I]t is one thing to register a fundraising with the SEC-this is something commonly done. . . . It is quite another thing to say that a product or service that is the object of the fundraising and that would not otherwise be considered a security but for the sale of the object as part of the investment scheme is itself a "security."[5]

Treating a token as a security is akin (no pun intended) to saying that if in Howey investors were permitted to take their profits in kind by taking delivery of the oranges produced by their strip of trees, those oranges would be securities and subsequent sales of these oranges by the investors to citrus-lovers would be securities transactions.[6] You cannot make a security out of an orange by citing to the fact that the groves that produced these oranges were originally developed and sold as part of an investment contract. In the digital asset context, however, the Commission and the courts that have evaluated the issue thus far have allowed the initial sale of a promise to deliver a future token in an investment contract wrapper to brand the promised tokens as securities upon delivery to the investment contract investors and perhaps in subsequent transactions too. Treating the initial pre-sale and the subsequent public token distribution as a single event gives rise to the inference that tokens can be securities.

Why does any of this matter in this enforcement action and more generally? After all, regardless of whether the tokens themselves are deemed to be securities, there was an unregistered securities offering here. The security label applied to tokens, however, carries with it real consequences.[7] Moreover, it prevents the early funders of a network from receiving and selling tokens and thus stifles network effects before they even have a chance to make the network vibrant.

As part of this settlement, Wireline will not distribute the tokens pursuant to the SAFTs, thereby avoiding the securities laws implications of such an action. This undertaking deprives SAFT investors of their direct opportunity to profit from Wireline's future development of the network, if that should occur one day. Under our settlement, SAFT investors likely will receive a portion of the monetary penalties the company is paying, but this amount will be far less than their initial investment. If Wireline successfully develops a platform, investors might seek the return of more of their initial investment, but it is not clear whether they would be entitled to anything beyond their initial investment. By that logic, we ought to have said to the Howey investors, "Your purchase of the orange groves was an unregistered securities transaction, so we're not letting you have the proceeds of the orange sales, but feel free to sue Howey once the crop comes in to get your original investment back." As long as we are permitting Wireline to move forward with the project, we should allow the SAFT investors to profit from the issuance of tokens once the network is ready to go live.

While an enforcement action is appropriate given the facts in this matter, preventing the SAFT investors from directly profiting from the token launch, as the settlement requires, does not seem to be the best outcome for investors. Moreover, given the lack of clarity as to whether the tokens themselves are securities how can a project, even one for which there are many eager users on day one of the network launch, be certain that a sale or even an airdrop of tokens will not be deemed a securities offering? A better course would be for us to treat the original capital-raising event for an unlaunched network as a sale of securities, but not to stretch the securities analysis to include subsequent sales of tokens for use on a launched network.

[1] See, e.g., SEC v. Kik Interactive, No. 19 Civ. 5244 (AKH), 2020 WL 5819770 (S.D.N.Y. 2020); SEC v. Telegram Group Inc., 448 F. Supp. 3d 352 (S.D.N.Y 2020).

[2] Telegram, 448 F. Supp. 3d at 379.

[3] Id. at 382.

[4] Kik Interactive, No. 19 Civ. 5244, at 8.

[5] Lewis Rinaudo Cohen, Ain't Misbehavin': An Examination of Broadway Tickets and Blockchain Tokens, 65 Wayne L. Rev. 81, 96 (2019).

[6] SEC v. W.J. Howey Co., 328 U.S. 293 (1946). In Howey, the investors had no right to specific fruit, but were entitled to their allocation of the net profits of the sale of the pooled produce. Howey is the seminal case defining an "investment contract," one category of securities under our federal securities laws. The Supreme Court held that the test of an investment contract "is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." Id. at 301.

[7] Again, Lewis Cohen explains: "[P]arties otherwise engaging in what would appear to be standard commercial transactions involving the tokens (including users, exchanges, and even the platform itself) would likely be considered broker-dealers and must meet a variety of complex regulatory requirements relevant only to persons in the business of dealing with assets that are traditionally recognized as securities." Cohen, supra note 2, at 97.