The US District Court for the Eastern District of New York in United States v. Zaslavskiy (Zaslavskiy) rules that cryptocurrency may be covered by US securities laws as they meet the test generally used to determine whether an instrument is an “investment contract” pursuant to US securities laws.
Overview and Implications
In September 2018, the US District Court for the Eastern District of New York released its decision in Zaslavskiy, in which the Court ruled an initial coin offering (ICO) may be subject to US securities laws. This signals the first time in history a US federal district court has rendered a decision regarding whether a cryptocurrency is an instrument governed by securities laws.
As identified in our recently published trends piece, Canadian Securities Litigation Outlook: Trends to Watch for Capital Markets Participants (Trends Piece), financial technology, and specifically cryptocurrency, is evolving faster than the law. Up until Zaslavskiy, the US cryptocurrency industry, similar to Canada’s cryptocurrency industry, has operated without any judicial guidance.
Instead, regulators have been playing catch up without any direction from the courts. For example, the United States Securities and Exchange Commission (the SEC) began to elaborate on the classification of various types of cryptocurrencies as securities, including that cryptocurrencies that are investment contracts are likely to be classified as securities.1 Canadian regulators have published a similar position on the status of ICOs, investment funds and exchanges.2 Specifically, Canadian regulators have commented that they will “look to substance rather than form” in determining whether a cryptocurrency satisfies the established criteria governing the classifications of securities and is, thus, subject to Canadian securities laws. Further, the Ontario Securities Commission and the BC Securities Commission have pledged their commitment to crackdown on fraudulent ICOs and cryptocurrency-related activities.
In Zaslavskiy, a Brooklyn entrepreneur (Zaslavskiy) founded two companies: one, which supposedly engaged in real estate investment and real-estate “smart contracts,” and another, which supposedly invested in diamonds. To fund both companies, Zaslavskiy induced investors to purchase cryptocurrency coins. To encourage the investors to purchase the coins, Zaslavskiy claimed that his companies would soon launch ICOs, thus promising investors security for their investment. Contrary to Zaslavskiy’s representations, the companies never invested in real estate or diamonds and neither company developed any coins. Zaslavskiy was indicted under US securities laws but he filed a motion to dismiss, arguing that the ICOs in question were not securities, but currencies instead.
In its decision, the US District Court relied on Securities Exchange Commissions (SEC) v. W.J. Howey Co., a US Supreme Court case that laid out a test to determine whether an instrument was an “investment contract” and therefore subject to US securities laws. The test from Howey states that an investment contract is a “contract, transaction, or scheme whereby a person 1) invests his money 2) in a common enterprise and 3) is led to expect profits solely from the efforts of the promoter or third party.”
The District Court in Zaslavskiy found that each prong from Howey had been satisfied: specifically, the first prong of the Howey test was met because individuals invested money and other forms of payment in the companies believing they were purchasing investment-backed virtual coins; the second prong was met because there was commonality between the investors of the two companies because each individual’s fortunes were tied to the fortunes of the other investors due to the pooling of their assets; and finally, the third prong was met because the investors were led to believe that profits would come from the efforts of Zaslavskiy and his co-conspirators, not from any effort of the investors.
Notably, the District Court rejected Zaslavskiy’s arguments that the securities laws were unconstitutionally vague as applied to cryptocurrencies because the courts have made it clear that the securities laws are meant to be interpreted flexibly in order to serve their intended purpose of protecting investors.
Without judicial guidance in Canada, neither the regulators or capital markets will fully understand the boundaries of the digital currency industry. As the commentary from U.S. regulators has been similar to that of Canadian regulators with regard to the treatment of cryptocurrencies, it will be interesting to see how, if at all, Zaslavskiy influences Canadian case law. Our Trends Piece identified instances where Canadian courts have found cryptocurrency to be problematic, however, there has yet to be a decision setting out the test to determine whether cryptocurrencies are covered by Canadian securities laws. However, given the Zaslavskiy decision, and its alignment with SEC guidance, we can assume Canadian courts will take a similar approach and agree with Canadian regulators.
If you have any questions concerning this case or securities litigation generally, please contact Brigeeta Richdale, Jessica Lewis, Danielle DiPardo, or any other member of the Cassels Brock Securities Litigation Group.
The authors of this article gratefully acknowledge the contributions of articling student Rebecca Sim.
1 See for example: https://www.sec.gov/news/public-statement/statement-clayton-2017-12-11