Road to Success

On November 7, the U.S. District Court for the District of New Hampshire ruled that digital tokens sold by a blockchain network qualify as securities under the Securities Act of 1933. The SEC sued the company in 2021, claiming that by issuing the tokens, the company conducted an unregistered offering of securities. The company countered that its tokens are not securities because they are not being offered as an investment opportunity on its platform, but rather are designed to be used by content creators and users. The company also argued that the tokens are not securities because they function as “an essential component” of the company’s blockchain and that investors acquired them for use on the company’s network, rather than with the intention of holding them as an investment. Further, the company claimed that it did not receive fair notice that its token offerings are subject to securities laws.

In determining whether the tokens are securities, the court relied on the U.S. Supreme Court’s definition of an investment contract in SEC v. W.J. Howey Co., focusing on the issue of “whether the economic realities surrounding [the company’s] offerings of [the tokens] led investors to have a ‘reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.’” According to the court, multiple statements made by the company led potential investors to reasonably expect the tokens to grow in value as the company continued to oversee the development of its network. “[P]otential investors would understand that [the company] was pitching a speculative value proposition for its digital token,” the court said, rejecting the company’s argument that it had informed some potential investors that the company was not offering its token as an investment. “[A] disclaimer cannot undo the objective economic realities of a transaction,” the court stated, adding that “[n]othing in the case law suggests that a token with both consumptive and speculative uses cannot be sold as an investment contract.” Additionally, the court explained that, while this may be the first instance where securities laws are being “used against an issuer of digital tokens that did not conduct an ICO, [the company] is in no position to claim that it did not receive fair notice that its conduct was unlawful.”