“Security Tokens” – A Developing Concept

 

“Security Tokens” – A Developing Concept

Part 2 of the “Smartblock Law Guide to Security Tokens, OTC Trades, Prospectus Exemptions, and Registration”

 
 
Securities Blog - Part 2.jpg
 

Chetan Phull · July 17, 2018

 

I. Introduction

A token is simply data, existing in the larger context of a digital ledger.

However, as recently stated by SEC Director William Hinman, the way tokens are sold most often triggers securities laws, because the sale evidences an “investment contract”.

Recent developments in Canada and the U.S. have helped to define the scope of the “investment contract test in the blockchain context.

This article assumes general knowledge of the “investment contract” test that triggers securities laws. For a general primer on this test, see our previous article, “The Law of ICOs/ITOs: Simplified”.

 

II. CSA confirmation that substance broadly trumps form

The Canadian regulators have stated that they will broadly consider substance over form in determining whether a token amounts to a security, in the context of distributions and registration requirements (see CSA Staff Notice 46-307; CSA Staff Notice 46-308; Pacific Coast Coin Exchange v. OSC, [1978] 2 SCR 112).

On June 11, 2018, the CSA released its Staff Notice 46-308, which provides numerous helpful examples of when a token is a security under the “investment contract” test in Canada.

We have distilled this notice into the following core principles of security tokens:

  • the objective of investor protection is an important consideration in determining whether a token is a security;
     
  • a token can be a security notwithstanding its utility. The economic realities of the token offering as a whole will be considered, with a focus on substance over form. Token features, on their own, are not decisive;
     
  • even freely distributed tokens could be securities, if the overall token distribution is “part of an overall sale of an ancillary or secondary product or service”; and
     
  • the SAFT (discussed below) will not necessarily result in a token that is not a security.

 

III. SEC clarification of tokens and “investment contract”

a. Clarity and consequences

Shortly before the CSA released its Staff Notice 46-308 (mentioned above), the SEC’s Chairman Clayton stated that a cryptocurrency operating as a replacement of sovereign currency is not a security.

Soon thereafter, SEC Director William Hinman stated that if a given crypto-asset had become “sufficiently decentralized”, there may no longer be any enterprise receiving investment.

The result is that the crypto-asset would not pass the investment contract test, and would therefore not be a security. Bitcoin and Ethereum were provided as examples of tokens that were no longer securities.

These statements are not law “in the books”, so to speak, and at least one is officially a personal opinion (see W. Hinman’s June 14, 2018 speech at fn 1).

However, given the ranks of the two staff members within the SEC, both statements provide de facto insight into the SEC’s policy direction for blockchain-related activities in otherwise uncertain territory.

For practical purposes, therefore, it makes sense to treat the statements as if they were made on behalf of the SEC as “soft law”.

We expect that the statements will ultimately be expressed in some form as federal law in the U.S., and prompt Canadian regulators to follow suit.

Until then, as a consequence of the persuasive force of the SEC, many blockchain platforms are clearly non-compliant with securities law in Canada right now.

In particular, for cryptocurrency exchanges, custodial wallets, and any other businesses dealing in security tokens, the window to cautiously exploit the legal “grey zone” that previously existed has closed, or is about to close.

As a result, ICOs / ITOs will need to be strategically re-evaluated according to available prospectus exemptions (see Part 4).

Moreover, dealer/advisor registration, and possibly also an application to become an exchange, must now be seriously considered (see Part 5).

 

b. New questions

Notwithstanding the recently provided clarity, the above SEC statements prompt the following questions:

  1. at what point does a given cryptocurrency “replace” a sovereign currency?
     
  2. at what point does a given token become “sufficiently decentralized”?
     
  3. when a token—which originated as a security—replaces a sovereign currency or becomes sufficiently decentralized, do investors lose their rights in securities law?

Numerous cases before the courts of various U.S. jurisdictions may answer these questions before any regulator does.

These cases are expected to address whether particular cryptocurrencies are securities, further to allegations involving the unregistered offer and sale of securities. (See, for example: SEC v. Arisebank et. al., 3-18CV-186; Hodges et. al. v. Monkey Capital et. al, 9-17CV-81370; Coffey et. al v. Ripple Labs Inc. et al, CGC-18-566271; and Vladi Zakinov et. al v. Ripple Labs Inc. et al, 18-CIV-02845.)

If these cases have different results—which is entirely foreseeable—the U.S. Supreme Court may need to provide a more definite test for when a token is a security.

 

IV. The SAFT

The SAFT envisions that investors purchase the right to own tokens produced on a future date.

At the time of token distribution, the SAFT contemplates that the investors’ security (the SAFT) will convert into a non-security (the token).

The SAFT therefore has two primary features. It is:

  1. a “security contract” designed to secure a prospectus-exempt investment today,
     
  2. in exchange for the delivery of “non-security tokens” tomorrow.

The conversion of the SAFT from a security, into tokens that are not securities, rests on a feature of the “investment contract” analysis which supposedly changes at the point of conversion.

As covered in our prior article, “The Law of ICOs/ITOs: Simplified”, the investment contract test involves:

  • an investment of money;
  • in a common enterprise;
  • with profits;
  • to come significantly from the efforts of others.

The question of the SAFT’s viability focuses mostly on the last prong of this test.

Assuming the other requirements are met, there is an investment contract when profits “come significantly from the efforts of others”.

Likewise, there is no investment contract when profits do not “come significantly from the efforts of others”.

The important question is therefore: when do profits no longer “come significantly from the efforts of others”?

As argued in the SAFT whitepaper, when a “functional network” exists, the tokens are “consumptive products”.

At this point, profits are considered to come less “significantly from the efforts of others”, and more from market forces.

The last prong of the test, the SAFT whitepaper argues, fails if a functional network exists at the time of token distribution. The tokens are thereby distributed as non-securities.

However, regulators have not accepted this reasoning generally.

The CSA has definitively stated that a SAFT will not, simply by its use, result in a non-security (see CSA Staff Notice 46-308).

The SEC has taken the same position albeit with less strict wording (see W. Hinman’s June 14, 2018 speech at fn 15).

Moreover, the SEC has provided a higher standard than “functional network” for the failure of the last prong of the “investment contract” test. The SEC’s key standard is “sufficient decentralization” of the network.

A blockchain venture is considered to have reached sufficient decentralization when it no longer requires “essential managerial or entrepreneurial efforts”.

The investment contract test is argued to fail at this point, resulting in non-security tokens like Ethereum.

We expect that the first Canadian blockchain case which considers the last prong of the investment contract test will discuss the dissent in Pacific Coast Coin Exchange v. OSC, [1978] 2 S.C.R. 112.

The dissent considered the effect of market forces on the “efforts of others”. It is therefore material to whether the last prong of the investment contract test will fail in the presence of a “functional network”, or the higher standard of “sufficient decentralization”.

 

V. Further complexities

a. Token classification in general

Even if the “investment contract” test fails for any given token, that token could still be a security in Canada on other grounds.

In the securities legislation of virtually all Canadian provinces and territories, the definition of “security” includes a document that evidences a property right (for example, OSA, s.1(1) “security” (b)).

Depending on the publicity of the ledger and the body of blockchain addresses, a given blockchain could potentially be such a “document” on the basis of the following:

 

b. Regulatory oversight of the SAFT

In Canada, there is persistent uncertainty as to “whether or not derivatives are ‘securities,’ or should be treated as such, for the purposes of regulation” (see R.A. Libbey, “Getting Our Act Together: …”, (2010) 19 Dal. J.L.S. 30, 2010 CanLIIDocs 38 at 44-45).

On this basis, regulation of the SAFT in Canada is a complex issue ab initio, because the SAFT has characteristics of both a “security” and a “derivative”.

Consider that the SAFT could potentially be a security in Ontario on the basis of:

Alternatively, the SAFT could potentially be a derivative on the basis of being a “forward contract”. (See OSA, s.1(1) “derivative”; OSC Rule 91-504, s.1.1 “OTC derivative” and “forward contract”.)

 

VI. Conclusion

The question of whether your token is subject to securities laws is fact-specific.

We can help determine if your fundraising operations or business model should be restructured, or tweaked, to minimize the force of applicable Canadian securities regulations.

Further to this end, we invite you to consider our service offering for “ICOs / ITOs and digital asset dealing / advising”.



 

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